the ict practitioners bill 2016 - kenya law...

. i.ii. fr-$-

-f\\' -r'

' NLL: , ".r-\

I'-rO$1, rr-L\ ,.ri:'

:-' '., .rs.i1gsr*SPECIAL ISSUE

Kenya Gazette Supplement No.84 (National Assembly Bills No. 18)

REPUBLIC OF KENYA

KENYA GAZETTE SU PPLEMENT

NATIONAL ASSEMBLY BILLS, 2016

NAIROBI, Tth June,2016

CONTENT

Bill for Introduction into the National Assembly- ,AGE

The Information Communication Technology Practitioners Bill, 2016 ..................263

I{ATIOI{AL COUI{CIL FOR LAy{ REPORTII{G

RECEIVED3CI JUH

P O Bcx 10443-00100NAIROBI, KENYA

rEL 2' 1:l_j1 jll__2236e1

lu,,j

PRINTED AND PI]BLISHED BY THE GOVERNMENT PRINTER, NAIROBI

263

THE IIYFORMATION COMMITNIC ATIONTECHNOLOGY PRACTTTIONERS B[LL, 2016

ARRANGEMENT OF CLAUSES

Clause

PART I-PRELIMINARY1-Short title.

2-Interpretation.

PART II- ESTABLISHMENT OF THE ICTPRACTITIONERS INSTITUTE

3-Establishment of the Institute.

4-Composition of the Council.

5-Conduct of business and affairs of the Council.

6-Functions of the Institute.

7-Powers of the Council.

8 -Remuneration of Council members.

9-Chief Executive officer of the Council.

10-Staff of the Institute.

11-Delegation by the Council.

l2-Committees of the Council.

1 3 -Protection from personal liability.

l4-Common seal.

PART III-REGISTRATION OF ICTPRACTITIONERS

15 -Qualifications for registration.

16- Registration.

l7-Register of ICT practitioners.

l8-Alterations to the Register.

I 9 - Publication of registration.

PART IV_LICENSING OF ICT PRACTITIONERS

2O-Licence to practice.

21-Period of validity of licences.

264 The Information Communication Technology Practitioners Bill, 2016

22 -Publication of licensing.

23 -No fees for unlicensed persons.

PART V- EIYFORCEMENT

24 -F alse registration or licensing.

25 - Professional misconduct.

26-Disciplinary proceedings by the Council.

27 -Effect of removal, suspension or cancellation.

28-Appeals.

Z9-Offences by uffegistered or unlicensed persons.

30- Obstruction of officers of the Council.

31-Punishment for offence of obstruction.

PART VI-FIHANCIAL PROVISIONS

32-Funds of the Institute.

33-Financial year.

34-Annual estimates.

35-Books and records of account.

36-Investment of funds.

PART VII - MISCELLANEOUS

37-Regulations.

38-Transition.

FIRST SCHEDULE - PROVISIONS AS TO TITECONDUCT OF BUSINESSAND AFFAIRS OF TIIECOUNCIL

SECOND SCHEDULE_COMMITTEES OF THECOUNCIL

T he I nformat io n C ommunic at io n T e c hno l o gy P rac titi o ne r s B i l l, 2 0 1 6

A Bill for

AN ACT of Parliament to proyide for the training,registration, licensing, practice and standards ofICT practitioners and for connected purposes

ENACTED by the Parliament of Kenya, as follows-PART I-PRELIMINARY

1. This Act may be cited as the Information Shorttitle'

Communication Technology Practitioners Act, 2016.

2. (1) In this Act, unless the context otherwise Intcrpretation'

requires-

"Council" means the Council of the Instituteestablished under section 3;

"Cabinet Secretary" means the Cabinet Secretary forthe time being responsible for matters relating toinformation communication technology ;

"Information Communication Technology (ICT)"means technologies employed in collecting, storing,processing, using or sending out information and includethose involving the use of computers, mobile apparatus orany telecommunication system;

"ICT practitioner (ICTP)" means a person registeredunder this Act as an ICT practitioner who is also licensedunder section 20 to practice as such;

"ICT practice" means the practice of ICT as the casemay be, for a fee or gain either in kind or cash;

"Institute" means the ICT Practitioners Instituteestablished under section 3;

"practicum" means an ongoing, supervised andorganized practical experience or intemship prescribed aspart of the qualifications for the award of any degree ordiploma and obtained in an integrated training programrecognized by the Council;

"Registet'' means the register of ICT practitionersmaintained under section 17.

(2) The expressions "legally qualified ICT practitioner" and "duly qualified ICT practitioner" or any wordsimporting a person recognized by law as an ICT


practitioner or a member of the profession of ICT, whenused in a wriffen law with reference to that person, shall beconstrued to mean a person registered as an ICTpractitioner under this Act or, where the context so admits,a person who is registered by the Institute under section 16.

PART II-ESTABLISHMENT OF TITE ICTPRACTITIONERS INSTITUTE

3. (1) There is established an Institute to be known asthe ICT Practitioners Institute.

(2) The Institute is a body corporate with perpetualsuccession and a common seal and shall, in its corporatenarne, be capable of-

(a) suing and being sued;

(b) acquiring, holding, charging and disposing ofmovable and immovable property;

(c) borrowing and lending money; and

(d) doing or performing all such other things or acts asmay legally be done or performed by a bodycorporate for the proper discharge of its functionsunder the Act.

(3) (a) The Institute shall be governed by a Council tobe known as the Council of the Institute.

(b) Subject to this Act, all acts and things done in thename of, or on behalf of, the Institute, by theCouncil or with the authority of the Council shallbe deemed to have been done by the Institute.

4.(1) The Council shall consist of-(a) the principal secretary in the Ministry for the time

being responsible for matters relating toinformation communications technology;

(b) the principal secretary in the Ministry for the timebeing responsible for matters relating to thenational treasury;

(c) one person appointed by the Cabinet Secretary torepresent training institutions in Kenya which havepower to grant a qualification which is recognizedunder this Act;

Establishment ofthe Institute.

Composition ofthe Council.

The Information CommunicationTechnology Practitioners Bill,20l6 2ff1

(d) one person who shall be of the female genderappointed by the Cabinet Secretary to representminorities and margin alized. groups;

(e) five persons of good professional standingnominated by the Information CommunicationTechnology Association of Kenya; and

(0 the chief executive officer, who shall be appointedby the Council through an open, ffansparent andcompetitive recruitment process, and who shall bethe secretary to the Council.

(2) All appointments under this section shall be bynotice in the Gazette.

(3) There shall be a chairman and vice chairperson ofthe Council who shall be elected in the manner provided inparagraph 3 of the First Schedule.

(4) A person shall not be appointed as a member of theCouncil under subsection (1) (a) unless such person-

(a) is a citizen of Kenya;

(b) has at least five years' experience in ICT relatedmatters;

(c) meets the requirements of Chapter Six of theConstitution.

(5) In appointing the members of the Council undersubsection (1) (c) and (d), the Cabinet Secretary shall takeinto account the gender, regional and other diversities ofthe people of Kenya.

5. (1) The conduct and regulation of the business andaffairs of the Council shall be as provided in the FirstSchedule.

(2) Except as provided in the First Schedule, theCouncil may regulate its own procedure.

6. The functions of the Institute shall be to-(a) establish standards of professional competence and

practice amongst members of the Institute;

(b) protect, assist and educate the public in Kenya inall matters touching, ancillary or incidental to theprofession of ICT;

Conduct ofbusiness andaffairs of thcCouncil.

Functions of theInstitute.

268 The Inlomution Communication Technology Practitioners Bill, 2016

(c) represent, protect and assist memhrs of theprofession of ICT in Kenya in respect ofconditions of practice and otherwise;

(d) approve courses for purposes of registration ofICT Practitioners under this Act;

(e) administer such examinations as may be necessaryto determine whether persons are qualified forregistration under this Act;

(f) register and licence ICT practitioners for thepurposes of this Act upon payment of theprescribed fees;

(g) collaborate with training institutions, professionalassociations and other relevant bodies in mattersrelating to training and professional developmentof ICT practitioners;

(h) determine the fees to be charged by ICTpractitioners and firms for professional servicesrendered from time to time;

(i) upon request, to act as an arbitrator in any disputesbetween a licensed ICT Practitioner and a client;

() advise the Cabinet Secretary on appropriatepolicies and programs governing the profession ofICT in Kenya;

(k) supervise the professional conduct and practice ofICT practitioners and to take the necessarydisciplinary measures in cases of violations ofprofessional conduct and discipline;

(l) plan, arrange, co-ordinate and oversee continuingprofessional training and development of ICTpractitioners.

(m)promote the international recognition of theInstitute;

(n) carry out any other functions prescribed for itunder any of the other provisions of this Act orunder any other written law.

7. The Council shall have all powers necessary for theproper performance of its functions under this Act and inparticular, but without prejudice to the generality of theforegoing, the Council shall have power to-

Powcrs ofthcCouncil.

T he I nformation C ommunic ation Te c hno lo gy P r ac titio ne r s B ill, 20 I 6

(a) control, supervise and administer the assets of theInstitute in such manner as best promotes thepurpose for which the Institute is established;

(b) determine the provisions to be made for capitaland recurrent expenditure and for the reserves ofthe Institute;

(c) receive any grants, gifts, donations or endowmentsand make legitimate disbursements therefrom;

(d) open such banking accounts for its funds as maybe necessary;

(e) invest any funds of the Institute not immediatelyrequired for its purposes in the manner provided insection 36;

(f1 undertake any activity necessary for the fulfilmentof any of its functions.

8. The Council shall pay its members suchremuneration, fees or allowances for expenses as it maydetermine upon the advice of the Salaries andRemuneration Commission.

9. (1) There shall be a chief executive officer of theInstitute who shall be appointed by the Council through anop€[, transparent and competitive recruitment process.

(2) The chief executive officer shall-(a) be the accounting officer of the Institute and shall,

subject to the direction of the Council, beresponsible for the day to day management of theaffairs and staff of the institute;

(b) be an ex-officio member of the Council but shallhave no right to vote at any meetings of theCouncil;

(c) perform such duties as are prescribed by or underthis Act.

(3) The terms and conditions of service of the chiefexecutive officer shall be determined by the council in theinstrument of appointment or otherwise in writing fromtime to time.

(4) A person shall not be appointed as a chiefexecutive officer unless such person is registered as an ICTpractitioner under this Act and-

Rcmuneration ofCouncil membcrs.

Chicf ExecutivcOfficcr.

27 O The lr.formation C ommunic ation Technolo gy Practitioner s Bill, 20 I 6

(a) has at least five years proven experience in thefield of ICT;

(b) has knowledge and experience in policyformulation, administration and management;

(c) meets the requirements of Chapter Six of theConstitution.

10. The Council may appoint such officers and otherstaff as are necessary for the proper discharge of itsfunctions under this Act, upon such terms and conditions ofservice as the council may determine upon the advice of theSalaries and Remuneration Commission.

11. The Council may, by resolution either generally orin any particular ease, delegate to any committee or to anymember, officer, employee or agent of the Council, theexercise of any of the powers or the performance of any ofits functions under this Act or under any other written law.

12. (l) The Council may establish such committees as

it may deem appropriate to perform such functions andresponsibilities as it may determine.

(2) The Council shall appoint the chairperson of a

committee established under subsection (1) from amongstits members.

(3) The council may where it deems appropriate, co-opt any person from outside the Council with knowledgeand expertise in specific areas to attend the deliberations ofany of its committees.

(4) AX decisions by the committees appointed undersubsection (1) shall be ratified by the Council.

(5) Without prejudice to the foregoing provisions ofthis section, the Council shall establish the committees setout in the Second Schedule.

13. (1) No act or omission by any member of theCouncil or by any officer, employee, agent or servant of theCouncil shall, if the act or omission was done bona fide forthe purposes of executing a function, power or duty underthe Act render such member, officer, employee, agent orservant personally liable to any action, claim or demandwhatsoever.

(2) The provisions of subsection (1) shall not relievethe Institute of the liability to pay compensation to any

Staff of theInstitute.

Delegation by theCouncil.

Committees of theCouncil.

Protectron frompersonal liability.

The Information Communication Technology Practitioners Bill, 2016 Zjl

person for any injury to that person, their property or to anyof their interests caused by the exercise of any powerconferred by this Act or by failure, whether wholly orpartially, of any works.

14. (l) The common seal of the Institute shall be keptin such custody as the Council may direct and shall not beused except upon the order of the Council.

(2) The affixing of the common seal of the Instituteshall be authenticated by the signature of the chairpersonand the chief executive officer and any document notrequired by law to be made under seal and all decisions ofthe Council may be authenticated by the signatures of boththe chairperson and the chief executive officer.

(3) Notwithstanding the provisions of subsection (2)the Council shall, in the absence of either the chairpersonor the chief executive officer in a particular matter,nominate one member to authenticate the seal on behalf ofeither the chairperson or the chief executive officer.

(4) The common seal of the Institute when affixed to adocument and duly authenticated shall be judicially andofficially noticed and unless and until the contrary isproved, any necessary order or authorization by the Councilunder this section shall be presumed to have been dulygiven.

PART III_RE,GISTRATION OF ICTPRACTITIONERS

15. A person shall be eligible for registration underthis Act as an ICT practitioner if the person-

(a) is the holder of at least a bachelor's degree in anICT related field from arecognized university;

(b) is the holder of at least a bachelor's degree from arecognized university and has relevant ICTexperience of at least three years;

(c) is the holder of a diploma from a recognizeduniversity and has passed an examination orfulfilled such requirements as may be prescribedby the Council;

(d) satisfies the Council that he or she is a person ofgood moral character and a fit and proper personto be registered under this Act.

Common Seal

Qualificahons forregrstratron.

272 The Information Communication Technology Practitioners Bill, 201 6

16. (l) Every person eligible to be registered as anICT practitioner may apply in the prescribed form to theRegistrar for regisEation in the register, and every suchapplication shall be accompanied by the prescribed fee.

(2) Where a person has complied with the provisionsof subsection (1) and has been accepted by the Council as

being eligible for regisfration and has satisfied the Councilthat he or she has been so accepted, he or she shall beregistered.

(3) The Council shall issue to every person registeredunder this Act, a certificate in the prescribed form.

17. The Council shall maintain a register of ICTpractitioners in the prescribed form in which the name ofevery person registered under this Act shall be entered.

18. (1) The Council shall, from time to time, make anycorrections in the register in relation to any entry therein.

(2) All changes in the entries under subsection (1)shall be made as soon as is practicable after receipt of thenotification thereof.

(3) The Council shall remove from the register-(a) the name of every-

(i) deceased person;

(ii) person convicted of an offence under this Actand all avenues of appeal have beenexhausted;

(iii) person whose name the Council has, undersection 27, dtected that it should be struckoff the Register; and

(b) any entry which has been incorrectly orfraudulently made in the register.

(4) The Council may, with the written consent of theperson, remove from the register the name of a person whohas ceased to practice.

(5) Every person registered under this Act who hasobtained a higher qualification than the registeredqualification shall, on the payment of the prescribed fee, beentitled to have that additional qualification inserted in theregister in addition to the qualification previouslyregistered.

Registration.

Register of ICTpractitioncrs.

Altcrations to theRegister.

The Information C ommunication Technology Practitioners Bill, 20 I 6

19. (1) The Council shall publish in the Gazette assoon as may be practicable after registration, the name ofevery ICT practitioner registered under this Act.

(2) lt shall be the duty of every ICT practitioner toinform the Council immediately of any change in theirregistered address.

(3) The publication of the list of registered ICTpractitioners in the Gazette shall be pritna facie evidencethat the persons named therein are registered under thisAct, and the absence of the name of any person from suchlist shall be prima facie evidence that the person is not soregistered.

PART IV-LICENSING OF ICT PRACTITIOIYERS

20. (l) A person shall not practise as an ICTpractitioner unless such person has complied with therequirements for continuing education and supervision, andhas been issued with a valid practice license by theCouncil, in accordance with regulations made under thisAct.

(2) The Council may issue to an ICT practitioner whohas applied in the prescribed form, a license to practice ontheir own behalf or to be employed.

(3) Subject to the provisions of this Act, a person shallnot operate an ICT firm unless-

(a) the firm has a certificate of registration of abusiness name or certificate of incorporation;

(b) the firm has at least one partner or principalshareholder who is registered as an ICTpractitioner and who has a valid practicing licence;and

(c) the firm fulfills any other condition as may bestipulated by the Council.

21. (l) A licence granted under this Act shall be validfor one year, for the duration between the lst January and31st December in every year, and may, upon expiry, berenewed.

(2) A person whose licence has not been renewed forone year or more and who wishes to have the licenc6renewed may apply to the Council upon-

Publicetion ofrcgistntion.

Licencc topracticc.

Pcriod of vdidityof liccnccsl


(a) swearing an affidavit in the prescribed formexplaining the reasons for non-renewal;

(b) payment of the license fee for the current licenseperiod;

(c) presentation of evidence to the Council offulfilment of all applicable conditions for renewalof a license; and

(d) payment of annual subscription fee for the currentlicence period.

(3) The Council may refuse to issue or to renew a

licence.

(4) A person aggrieved by a decision of the Councilunder this section may appeal to the High Court, and in anysuch appeal the High Court may annul or vary the decisionof the Council as it may determine necessary.

22. (l) The issue and the cancellation, revocation orwithdrawal of a licence under this Part shall be published inthe Gazette.

(2) The Council shall, once in every year, as soon as

convenient after lst January, but not later than 31st March,publish in the Gazette a list containing the names,qualifications and registered addresses of all licensed ICTpractitioners.

23. A person shall not be entitled to recover a fee forICT services, unless such person is licensed under this Act.

PART V-ENFORCEMENT

24. (l) Any person who wilfully procures or attemptsto procure registration or licensing under any of theprovisions of this Act, by making or producing or causingto be made or produced any false or fraudulentrepresentation or declaration either orally or in writing,commits an offence and shall be liable on conviction to afine not exceeding five hundred thousand shillings or toimprisonment for a term not exceeding two years, or both.

(2) If a person convicted of an offence under thissection is registered or licensed under this Act, the Councilshall remove such person's name from the register andcancel the licence.

i

I

II

1

I

I

Publication oflicences.

No fees forunlicensedpersons

False registrationor licensing.

T he I nfo r mat i o n C ommunic ation T e c hno lo gy P r ac tit io ner s B i ll, 2 0 I 6

25. A person who is licensed as an ICT practitioner Proressional

commits anict of professional misconduct if such person- misconduct'

(a) deliberately fails to follow the laid down standardsof conduct and practice of the profession of ICT asmay be laid down by the Council;

(b) commits gross negligence in the conduct ofprofessional duties,

(c) allows another person to practise in their name,where such person-(i) is not a holder of a practising certificate

issued under this Act; and

(ii) is not in partnership with the ICT practitioner;

(d) takes advantage of clients by abusing a position oftrust, expertise, or authority;

(e) is insensitive to clients through a lack of regard orconcern for clients' needs, feelings, rights, orwelfare of others;

(f) shows incompetence or inability to renderservices, for reasons ranging from inadequatetraining or inexperience, to personal unfitness,such as a character defect or an emotionaldisturbance;

(g) evidences inesponsibility including lack ofreliable or dependable execution of professionalduties, attempts to blame others for one's mistakes,shoddy or superficial professional work, orexcessive delays in delivering necessary feedback,assessments, reports, or services; or

(h) is guilty of abandonment through failure to followthrough with their duties or responsibilities,thereby causing clients to become vulnerable orincur unnecessary expenditure.

26. (l) Any person may, being dissatisfied with anyservices offered by an ICT practitioner or alleging breachof the standards of conduct as may be specified by theCouncil from time to time, make a written complaint to theCouncil in the prescribed manner.

(2) Where the Council is satisfied in respect of anyperson registered or licensed under this Act, that suchperson-

Disciplinaryproceedings bythe Council.

276 The InJormation Communication Technology Practitioners Bill, 2016

(a) has been convicted of an offence under this Act orunder any other law punishable by imprisonment,the commission of which in the opinion of theCouncil has brought the profession to disrepute;

(b) has committed an act of negligence or malpracticein respect of his or her profession or

(c) has committed an act of impropriety ormisconduct in respect of his or her profession, theCouncil may, subject to subsection (10)-(i) remove such person's name from the register;

(iD suspend such person's licence or registrationfor a period not exceeding twelve months; or

(iii) cancel such person's licence.

(4) For the purpose of proceedings at an inquiry heldunder this section, the Council may administer oaths andmay, subject to the provisions of regulations made underthis Act, enforce the attendance of persons as witnesses andthe production of books and documents as evidence.

(5) Any person whose name has been removed from a

register or whose license has been cancelled or suspendedshall forthwith surrender to the Council his or hercertificate of registration or license, and any person whofails to do so commits an offence and shall be liable onconviction to a fine not exceeding fifty thousand shillingsor to imprisonment for a term not exceeding two years, orboth.

(6) Subject to the provisions of this section and torules as to procedure made under this Act, the Council mayregulate its own procedure in disciplinary proceedings.

(7) The power to direct the removal of the name of aperson from the register or to cancel the licence of a personshall include a power exercisable in the same manner todirect that during such period as may be specified in theorder, the registration of a person's name in the register orthe licence granted to him or her shall not have effect.

(8) The provisions of this section, in so far as theyrelate to the cancellation or suspension of licenses, shall bein addition to and not in derogation of the provisions ofsection 18.

.

I

The Info rmat i o n C ommuni c at ion T e c hno lo gy P r ac titione r s B il l, 2 0 I 6

(9) A person who fails, when summoned by theCouncil, to attend as a witness or to produce any books ordocuments which he is required to produce commits anoffence and shall be liable on conviction to a fine notexceeding fifty thousand shillings or to imprisonment forsix months, or both.

(10) Notwithstanding any other provisions of this Act,the Council shall not remove the name of a person from theregister, or cancel any licence granted to a person, unlesssuch a decision is supported by a majority of all theCouncil members.

27. (1) Subject to the provisions of this Act, theremoval of a person's name from the register shall benotified by the Council to that person by registered mailsent to the address appearing in the register against thatperson's name immediately before such removal.

(2) Where the name of a person has been removedfrom the register, the name of that person shall not, subjectto the provisions of this Act, be entered again in the registerexcept by order of the Council.

(3) Where an order has been made for the removal of aperson's name from the register, or for suspending aperson's regisffation under this Act, or for cancelling orsuspending a licence granted to a person under this Act, theCouncil may either on its own motion or on the applicationof the person concerned, and in either case after holdingsuch inquiry as the Council may deem fit, cause the nameof that person to be restored to the register or terminate thesuspension of the registration, or, as the case may be, granta new licence or terminate the suspension of the existinglicence, in any such case either without fee or on thepayment of such fee, not exceeding the appropriateregistration or licence fee, as the Council may determine.

(4) Subsection (1) shall not apply when a person'sname has been removed from the register at that person' s

request or with that person's consent in circumstancesunder which it could not otherwise have been removedwithout consent.

(5) Notwithstanding the provisions of subsection (3)above, a person whose name was removed from the registerat that person's own request, shall upon application and on

Effect of removal,suspension orcancellation.


,

l

l

i

payment of the prescribed fee, have the name restored onthe register.

28. Any person aggrieved by a decision of the Councilunder this Act may appeal within thirty days to the HighCourt and in any such appeal the High Court may confirm,annul or vary the decision of the Council as it deems fit.

29. (l) Any person who, not being eligible to belicensed or registered under this Act, wilfully and falselytakes or uses any name, title or addition implying aqualification to practice as an ICT practitioner, or who, notbeing registered or licensed under this Act, practises orprofesses to practice or publishes that person's name aspractising as an ICT practitioner, commits an offence andshall be liable on conviction to a fine not exceeding fivehundred thousand shillings or to imprisonment for a termnot exceeding two years, or both.

(2) Any person who, not being eligible to be licensedor registered under this Act, uses the title "ICT practitioner"as appropriate to a person so registered or licensed, whichentitles such person to use that title, commits an offenceand shall be liable on conviction to a fine not exceedingfifty thousand shillings or to imprisonment for a term notexceeding two years, or both.

30. Any person, being in charge of a traininginstitution which is not approved by the Council as aninstitution for the training of persons seeking registrationunder this Act, who-

(a) admits to the institution under their charge anyperson for the purpose of training in the professionof ICT;

(b) purports to be conducting a course of training orexamining persons seeking registration under thisAct or regulations made thereunder;

(c) issues any document, statement, certificate or sealimplying that the holder thereof has undergone acourse of instruction or has passed an examinationprescribed by the Council; and

(d) issues any document, statement, certificate or sealimplying that the institution under his or hercharge is approved by the Council as an institution

Appeals

Offences byunregistered orunlicensedpersons.

Obstruction ofofficers of theCouncil.

The Information C ommunication Technolo gy Practitioners B ill, 20 I 6

for training of persons seeking registration underthis Act,

commits an offence and is liable on conviction to a

fine not exceeding one million shillings or imprisonmentfor a term not exceeding three years, or both.

31. Any person who obstructs or hinders, orknowingly makes a false or misleading statement to anymember, officer, servant or agent of the Council who iscarrying out duties under this Act, commits an offence andshall be liable on conviction to a fine not exceeding onehundred thousand shillings or imprisonment for a term notexceeding two years, or both.

PART VI_FINANCIAL PROVISIONS

32. The funds of the Institute shall comprise-

(a) such fees, monies or assets as may accrue to orvest in the Council in the course of the exercise ofits powers or the performance of its functionsunder this Act or under any written law; and

(b) all monies from any other source provided for ordonated or lent to the Institute.

33. The financial year of the Institute shall be theperiod of twelve months ending on the thirtieth June ineach year.

34. (1) At least three months before thecommencement of each financial year, the Council shallcause to be prepared estimates of the revenue andexpenditure of the Institute for that year.

(2) The annual estimates shall make provision for allestimated expenditure of the Institute for the financial yearand in particular, the estimates shall provide for-

(a) the payment of such facilities and services as theInstitute may require for the discharge of itsfunctions under this Act;

(b) the payment of the allowances and other charges inrespect of members of the Council;

(c) the payment of salaries, pensions, gratuities andother charges in respect of staff of the Institute;

Punishment foroffence ofobstruction.

Funds of theInstitute.

Financial year.

Annual estimates

i

i

i


(d) the proper maintenance of the buildings andgrounds of the Council;

(e) the maintenance, repair and replacement of theequipment and other property of the Institute; and

(f) the creation of such reserve funds to meet future orcontingent liabilities in respect of retirementbenefits, insurance or replacement of buildings orequipment, or in respect of such other matter as theCouncil may deem appropriate.

(3) The annual estimates shall be approved by theCouncil before the commencement of the financial year towhich they relate and shall be submitted to the CabinetSecretary for approval and after the Cabinet Secretary'sapproval, the Council shall not increase the annualestimates without the consent of the Cabinet Secretary.

35. (1) The Council shall cause to be kept all properbooks and records of accounts of the income, expenditureand assets of the Institute.

(2) Within a period of three months after the end ofeach financial year, the Council shall submit to the Auditor-General the accounts of the Institute together with-

(a) a statement of the income and expenditure of theInstitute during that year; and

(b) a balance sheet of the Institute on the last day ofthat year.

(3) The accounts of the Institute shall be audited andreported upon in accordance with the Public Audit Act,2015.

36. The Institute may invest any of its funds insecurities, in which for the time being the trustees may bylaw invest trust funds, or in any other securities or bankswhich the Treasury mal, from time to time, approve forthat purpose.

PART VII -MISCELLANEOUS37. (l) The Council may, upon consultation with the

Cabinet Secretary, make regulations generally for the bettercarrying into effect the provisions of this Act.

(2) Without prejudice to the generality of theforegoing, the regulations under this Act may-

Books and recordsof account.

Investrncnt offunds.

Regulations.

The Information CommunicationTechnology Practitioners Bill, 2016 Zgl

(a) prescribe the form and method of keeping theregisters under this Act;

(b) prescribe forms, methods and regulationsconcerning conditions for the issuance of licenses;

(c) prescribe the manner of training, subject matter oftraining courses, standards of proficiency for theprofession of ICT, including standards forinternship and practicum and examinations ofpersons for whom provision is made under this Actto be regulated;

(d) prescribe the standards and conditions ofprofessional practice of persons registered orlicensed under this Act;

(e) provide for the procedure to be followed by theCouncil in a disciplinary inquiry;

(f) provide for enforcing the attendance of witnessesand the production of books and documents at aninquiry held by the Council;

(g) prescribe forms to be used in connection with thisAct or fees to be charged under this Act;

(h) prescribe the supervision to be undergone bypersons registered under this Act;

(i) prescribe anything required by this Act to beprescribed.

(3) For the purposes of Article 94(6) of theConstitution the purpose and objective of the delegationunder this section is to enable formulation of regulations toprovide for the better carrying into effect of the provisionsof this Act and to enable the Institute to discharge itsfunctions more effectively and-

(a) the authority of the Cabinet Secretary to makeregulations under this Act will be limited tobringing into effect provisions of this Act and tofulfillment of the objectives specified under thissection;

(b) the principles and standards applicable to theregulations made under this section are those setout in the Interpretation and General ProvisionsAct and the Statutory lnstruments Act,2013.

i

I

i


38. (1) Within sixty days upon the cofilmencement of rransition'

this Act the Cabinet Secretary shall by notice in theGazette-

(a) publish the names of the Council members inaccordance with section 4 (l);

(b) convene the first Council meeting for the pu{poseof launching the business and affairs of theInstitute.

(c) provide the institute with such facilities and othersupport as it may require for the discharge of itsfunctions under this Act.

(2) Within sixty days of occurrence of a vacancy in theCouncil, the Cabinet Secretary shall by notice in theGazette publish the name of every person appointed to fillsuch vacancy.

(3) Notwithstanding anything in this Act, a personwho immediately before the date of commencement of thisAct was engaged in practice as an ICT Practitioner shall beentitled to continue in such practice without a licence underthis Act-

(a) for a period of one year beginning with the date ofthe commencement of this Act; and

(b) if before the expiration of six months, the personapplies for a licence under this Act, until thelicence is granted or finally refused or theapplication is withdrawn.

FIRST SCHEDULE [s.4 (3), s.5(1)]

PROYISIONS AS TO THE CONDUCT OF BUSINESSAND AIT'AIR.S OF THE COUNCIL

1. The chairperson, vice chairperson or a member of renurcof office'

the Council other than an ex officio member shall, subjectto the provisions of this Schedule, hold office for a periodof three years, on such terms and conditions as may bespecified in the instrument of appointment, but shall beeligible for reappointment.

2. A member, other than an ex officio member, may

(a) at any time resign from office by notice in writing vacationoroffice

to the Cabinet Secretary;

T he I nJormation C ommunic at io n T e c hno lo gy P rac t itione r s B i I l, 2 0 I 6

(b) be removed from office by the Cabinet Secretaryon recofirmendation of the Council if the member-

(i) has been absent from three consecutivemeetings of the Council without the Council'spermission;

(ii) is convicted of a criminal offence thatamounts to a felony under the laws of Kenya;

(iii) is incapacitated by prolonged physical ormental illness for a period exceeding sixmonths;

(iv) ceases to be a registered person under thisAct; or

(v) is otherwise unable or unfit to discharge hisfunctions.

3. (1) The Council shall, at its first meeting upon thecommencement of this Act and upon every lapse of thetenure specified in paragraph 1, elect a Chairperson andvice- chairperson from amongst its members.

(2) The Council shall meet not less than four times inevery financial year and not more than four months shalllapse between the date of one meeting and the date of thenext meeting.

(3) Notwithstanding subparagraph (2), the chairpersonof the Council may convene a special meeting of theCouncil at any time for the transaction of the business ofthe Council, upon requisition in writing by at least fivemembers of the Council.

(4) Unless three quarters of the total members of theCouncil otherwise agree, at least fourteen days' writtennotice of every meeting of the Council shall be given toeYery member of the Council.

(5) The quorum for the conduct of the business of theCouncil shall be five members.

(6) The chairperson or in his absence, the vice-chairperson, shall preside at every meeting of the Councilbut the members present shall elect one of their number topreside whenever the chairperson and vice-chairperson areabsent, and the person so elected shall have all the powersof the chairperson with respect to that meeting and thebusiness transacted thereat.

Chairperson andvice chairpcrson

Meetings.

Quorum.

284 The InJormation C ommunic ation Techno lo gy P ractitioners B ill, 20 I 6

(7) Unless a unanimous decision is reached, a decisionon any matter before the Council shall be by a majority ofthe votes of the members present and voting, and in case ofan equality of votes, the chairperson or the person presidingshall have a casting vote.

(8) Subject to subparagraph (5), no proceedings of theCouncil shall be invalid by reason only of a vacancy amongthe members thereof.

(9) Subject to the provisions of this Schedule, theCouncil may determine its own procedure and theprocedure for any committee of the Council and for theattendance of other persons at its Meetings, and may makestanding orders in respect thereof.

4. (l) A member who has an interest in any contract,or other matter, present at a meeting shall, at the meetingand as soon as reasonably practicable after thecofirmencement, disclose the fact thereof and shall not takepart in the consideration or discussion of, or vote on, anyquestions with respect to the contract or other matter, or becounted in the quorum of the meeting during considerationof the matter.

(2) A disclosure of interest made under subparagraph(1) shall be recorded in the minutes of the meeting at whichit is made.

(3) A member of the Council who contravenessubparagraph (1) commits an offence and shall be liable onconviction to a fine not exceeding five hundred thousandshillings.

5. Any contract or instrument which, if entered into orexecuted by a person not being a body corporate, would notrequire to be under seal, may be entered into or executed onbehalf of the Council by any person generally or speciallyauthorized by the Council for that purpos€.

SECOND SCHEDULE (s. 12(5))

COMNIITTEES OF THE COUNCIL1. The Examination and Registration Committee.

2. The Continuing Education Committee.

3. The Disciplinary Committee.

4. The Finance and Administration Committee.

Disclosurc ofintercst.

The I nformation C ommu nic ation Te c hno lo gy P r ac titioner s B i ll, 2 0 I 6

MEMORANDUM OF OBJECTS AND REASONS

Statement of the Objects and Reasons of the BillThe principal object of this Bill is to establish a legal framework for

the training, registration, licensing, practice and standards of InformationCommunication Technology (ICT) professionals in Kenya.

Part I contains preliminary provisions.

Part tr provides for the establishment of the InformationCommunication Technology Practitioners Institute, its composition,powers and functions. It further provides for a Council as the governingorgan of the Institute.

Part m contains provisions relating to the registration of ICTPractioners. It among other things, stipulates the requirements for suchregistration, the keeping of a rcgister containing particulars of registeredpersons and the manner in which alterations may be made to that register.

Part IV contains provisions relating to the licensing of ICTPractitioners. It provides for the issuance of practising licences and theduration of those licences.

Part V contains enforcement provisions. It among other thingsdefines what constitutes professional misconduct, and provides fordisciplinary proceedings by the Council against an errant practitioner. Itfurther provides for the removal, suspension or cancellation of a memberfrom the register, and the effect thereof. It alss provides for variousoffences relating to various matters under the Bill.

Part YI contains the financial provisions and among others, definessources of fund of the Institute, the annual estimates of the Institute andauditing of accounts of the Institute.

Part VII contains miscellaneous provisions.

Statement on the delegation of legislative powers and limitationof fundamental rlghto and freedoms

The Bill delegates legislative powors but it does not limitfundamental rights and freodoms.

Statement on whether the Bill concerns county governments

The Bill does not concern county governments in terms of Article110 of the Constitution.

Statement as to whether the Bill is a money Bill within themeanlng of Article 114 of the Constitution

The enactment of this Bill shall not occasion additional expenditureof public funds.

Dated the 6th June,2016.

ADEN DUALE,lzader of the Majority Party.

the ict practitioners bill 2016 - kenya law...

Documents