Enforcement, Complaints & Legal ( Full )
Enforcement, Complaints & Legal
The Commission is mandated to investigate on its own accord or on request from any institution, office or person any issue affecting ethnic and racial relations. It is also mandated to investigate complaints of discrimination and make recommendations to the Attorney General, the Kenya National Commission on Human Rights or other authority on remedial measures to be taken where complaints are valid.
To fulfill this mandate, the NCIC has developed an elaborate complaint handling procedure to redress inequality, exclusion and intolerance. The complaints are handled by the Complaints, Legal and Enforcement Department.
What is a Complaint?
It is a written expression of displeasure and dissatisfaction over discriminatory treatment that sets out reasons and circumstances that the complainant believes offer sufficient ground to support their claim against another person, persons or entity. The basis of the action in question must be ethnic, racial or religious.
The National Cohesion and Integration law allows any person to complain to the Commission, whether or not the complaint affects them directly or not. Two or more people can complain jointly. A complaint may be made against an individual or a group of people. It does not matter whether the group is registered or not.
The law requires that the complaint should set out the contravention in written form. It can then be hand delivered, or sent through facsimile or other electronic transmission or post to the Commission.
The NCIC will inquire into allegations and complaints on the basis of discrimination, harassment and hate speech for the purposes of the National Cohesion and Integration Act 2008.
Discrimination - is unfair treatment towards or against a person of a certain group on the basis of ethnicity /race, religion; it involves excluding or restricting members of a one group from opportunities that are available to other groups like employment, property ownership, and access to public resources.
Harassment - is violation of a persons dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment on the basis of ethnicity, race and color.
Hate Speech - is using threatening, inciting, abusive or insulting words or behavior, or display of any written material with the intention of stirring up ethnic hatred.
A person shall complain to the Commission by lodging a written complaint by hand, facsimile or other electronic transmission or post.
- Any person who claims that another person has contravened a provision of the Act in relation to that person may complain to the Commission as prescribed above.
- Two or more persons may complain jointly.
- A complaint may be made by or against an individual as well as a body of persons whether corporate or unincorporated.
- In order to complain to the Commission it is not necessary for the alleged contravention to relate exclusively to the complainant.
The Act provides that the Commission may conduct investigations on its own motion.
Complaint Handling Procedure
Upon receipt of a Complaint:
- The Commission must notify the Respondent about the complaint as soon as is practicable.
- The Commission may decline to entertain some complaints if the complaint falls within the provisions of section 45(1)
- Where the Commission declines to entertain a complaint, it must notify the Complainant within sixty (60) days after the day the complaint was lodged.
- Further, before the Commission declines to entertain a complaint, it may, by written notice, invite any person to attend before it or to produce any document.
- The Commission may dismiss a complaint if it has had no substantive response from a complainant twelve months after a request by the Commission for such a response.
- The Commission shall refer a complaint to the Secretary if it considers it reasonably possible that such a complaint may be successfully conciliated.
- Where the Commission does not consider it reasonably possible that a complaint may be successfully conciliated, it shall notify both the complainant and Respondent in writing.
- The Commission shall set a complaint down for hearing if it does not consider it reasonably possible that the complaint may be successfully conciliated. Such hearing shall be set in motion once the complainant has written to the Commission requiring the Commission to set down the complaint for hearing.
- The Commission may dismiss a complaint in 8 above if the complainant does not write to the Commission requiring a hearing.
- The Commission shall act as in 8 above if its efforts at conciliation fail.
Task Force on Hate Speech
To strengthen its capacity in executing its mandate, the Commission partnered with the offices of the Criminal Investigations Department (CID) and the Director of the Public Prosecutions to form a Task Force on Hate Speech. The Task Force meets regularly to discuss cases of hate speech to advice on the way forward.
The formation of the Task Force was informed by the need to ensure that the two departments (the Criminal Investigations Department (CID) and the Director of the Public Prosecutions) work in harmony with the Commission to promote cohesion and integration in the country.
The partnership provides an opportunity for the Commission to benefit from the experience and expertise of the two departments in furthering its mandate, creates avenues for consultation and information sharing, and strengthens the appreciation of the roles played by three actors in complementing each other.
Contact: Kyalo Mwengi, Senior Legal Officer ,