MINISTRY OF HIGHER EDUCATION, SCIENCE AND TECHNOLOGY SCIENCE, TECHNOLOGY AND INNOVATION BILL, 2009 MARCH 2009
MEMORANDUM ON THE OBJECTS OF SCIENCE, TECHNOLOGY AND INNOVATION BILL Introduction The Science, Technology and Innovation Bill establishes institutions and policy guidelines that provide for: 1. the promotion of research, science, technology and innovation for national socioeconomic development; 2. generation of advice, harmonization, coordination and dissemination of policies for research, science, technology and innovation; 3. the promotion and coordination of technology acquisition, adaptation and diffusion into national development processes; and the development of mechanisms for the promotion and utilization of innovations in the country; 4. Mobilization, management and disbursement of funds for science, technology and innovation activities; and 5. dispute resolution on matters of and related to science, technology and innovation The provisions of their individual Parts shall mutatis mutandis apply to each as the case may be. The Bill also provides for powers, functions and related mechanisms for the functioning of the institutions and the appointment of their respective Boards and Chief Executive Officers. PART I - provides the preliminary in context of interpretations and definitions. ii
PARTS II V - Lay the context on the promotion of Research, Science, Technology and Innovation; the harmonization of accreditation, registration and quality assurance among institutions; and defines the storage, dissemination and commercialization of STI products and services. PART VI establishes the KENYA NATIONAL TECHNOLOGY ACQUISITION OFFICE (KENTAO) for the promotion and coordination of technology acquisition, adaptation and diffusion. PART VII creates the NATIONAL INNOVATION AGENCY (NIA) for stimulating and intensifying technological innovation and invention in order to improve economic growth and the quality of life for all Kenyans. PART VIII establishes the NATIONAL COMMISSION FOR SCIENCE, TECHNOLOGY AND INNOVATION (NCST&I) whose mandate is to provide for the generation of advice, harmonization, coordination and dissemination of policies for research, science, technology; the promotion of research, science, technology and innovation for national socio-economic development. PART IX establishes The KENYA NATIONAL RESEARCH FOUNDATION (KENREF) whose key functions are the mobilization, management and disbursement of funds for science, technology and innovation activities including funds for human resource development and the provision of the necessary research facilities in order to facilitate the creation of knowledge, innovation and development in all fields of science and technology, including indigenous knowledge and thereby to contribute to the improvement of the quality of life of all Kenyans. PART X Provides the General Provisions. The General Provisions cover qualifications for appointment, general penalties and regulations under this Act. PART XI Establishes an Appeal Tribunal. iii
PART XII Addresses issues related to Repeal, Amendments, Savings and Transitional Provisions. Establishment of the institutions The established institutions shall each be body corporate with perpetual succession and a common seal, with capability of:- 1. Capable of suing and being sued; 2. Taking, purchasing or otherwise acquiring, holding, charging, and disposing of movable and immovable property; 3. Resource mobilization including, borrowing, lending money and fund raising; and 4. Doing or performing all such things or acts for the proper performance of its functions under, and in the furtherance of the provisions of this Act, this may lawfully be done or performed by a body corporate. Financial implications for the State The Science, Technology and Innovation Bill is a consolidation of existing initiatives and will, therefore, begin with a budget already allocated in the Medium Term Expenditure Framework of the Education Sector. Resource mobilization activities will be carried out in order to realize the goals of the Science, Technology and Innovation Policy and Strategy to enable a much stronger science, technology and Innovation base in the Kenyan economy for a globally competitive and prosperous nation with a high quality of life for all Kenyans. iv
ARRANGEMENT OF PARTS PART TITLE PAGE MEMORANDUM ON THE OBJECTS OF SCIENCE, TECHNOLOGY AND INNOVATION BILL PREAMBLE 1 PART I PRELIMINARY 2 i PART II PART III PART IV PART V PROMOTION OF RESEARCH, SCIENCE, TECHNOLOGY AND INNOVATION AUTHORISATION OF RESEARCH, SCIENCE, TECHNOLOGY AND INNOVATION ACTIVITY ESTABLISHMENT, ACCREDITATION, REGISTRATION AND QUALITY ASSURANCE OF INSTITUTIONS STORAGE, DISSEMINATION, COMMERCIALIZATION, APPLICATION AND UTILISATION OF PRODUCTS OF RESEARCH, SCIENCE, TECHNOLOGY AND INNOVATION 5 6 8 14 PART VI THE NATIONAL TECHNOLOGY ACQUISITION OFFICE 15 PART VII PART VIII PART IX PART X PART XI PART XII PART XII NATIONAL INNOVATION AGENCY THE NATIONAL COMMISSION FOR SCIENCE, TECHNOLOGY AND INNOVATION RESEARCH INSTITUTES KENYA NATIONAL RESEARCH FOUNDATION THE SCIENCE, TECHNOLOGY AND INNOVATION APPEAL TRIBUNAL GENERAL PROVISIONS REPEAL, AMENDMENTS, SAVINGS AND TRANSITIONAL PROVISIONS 18 24 31 32 43 48 49 v
SCIENCE, TECHNOLOGY AND INNOVATION BILL, 2008 An Act of Parliament to promote science, technology and innovation for socioeconomic development; to harmonize, co-ordinate and disseminate policy in research, science, technology and innovation; to establish a National Commission for Science and Technology, a Kenya National Technology Acquisition Office, a National Innovation Agency, and a Kenya National Research Foundation; and for purposes connected therewith and incidental thereto. PREAMBLE Whereas it is intended that there be established an efficient national innovation system, Whereas it is desired that research, science, technology and innovation in Kenya shall aim at promoting national development; Whereas all forms of research, science, technology and innovation shall be determined and planned in accordance with the provisions of this Act; Whereas it is desired that Kenya is transformed into a knowledge based economy; Whereas research, science, technology and innovation policies in Kenya shall aim at identifying, nurturing and encouraging a systematic process of enquiry in order to discover, interpret or revise theories, knowledge, behavior, and events in all spheres and promote and utilize Kenyan traditional knowledge, innovation and technologies and; Whereas it is desired that research, science, technology and innovation shall be undertaken in accordance with the set guidelines, standards and ethics; Whereas it is intended that there shall be effective and efficient partnership, interaction and collaboration between the public sector, private sector and other persons and institutions conducting, promoting and managing research, science, technology and innovation in Kenya; Whereas it is intended that social and scientific research, technology and innovation shall be initiated, conducted and utilized in accordance with the set guidelines and regulations; Whereas it is intended that there shall be effective and efficient mechanism for the storage, distribution, dissemination, application and utilization of research, - 1 -
science, technology and innovation findings and results; Whereas it is intended that the protection and promotion of intellectual property shall be mainstreamed in all research, science, technology and innovation and production activities; Whereas it is intended that for the purpose of enhancing innovation and productivity, research shall be integrated in all productions and systems of the economy and that the findings and results of research, science, technology and innovation shall be applied for the socio-economic and or industrial development of Kenya; Whereas it is desired that research, science and technology in Kenya shall be geared to the promotion of innovativeness, inventiveness, creativity, technology transfer and entrepreneurial culture; Whereas it is desired that there shall be effective and efficient mechanisms and institutions for funding research, science, technology and innovation to ensure access to and equity in the conduct, dissemination, utilization, commercialization and application; AND Whereas it is desired that the human rights and welfare of researchers, scientists, technologists and innovators shall be guaranteed; IT IS THEREFORE ENACTED by the Parliament of Kenya as follows- PART 1 PRELIMINARY Short title 1. This Act may be cited as the Science, Technology and Innovation Act, 2008. Commencement and application Interpretation 2. This Act shall come into effect on such a date as the Minister may, by notice in the Gazette, determine. 3. In this Act, except where the context otherwise requires- Appeals Tribunal means the Research, Science, Technology and Innovation Appeals Tribunal established under section 96 of this Act; CHE means the Commission for Higher Education established under the Universities Act of 1985; Commission means the National Commission for Science, Technology and - 2 -
Innovation established under Section 60 of this Act; Agency means the National Innovation Agency established under Section 43 of this Act; Eminent scientist means a scientist who has made distinguished contributions in his field of study; Incubation means the maintenance of enabling environmental conditions for the purpose of facilitating the growth or development of infant technologies or industries; the support provided by business incubators in the development phase of start ups when entrepreneurs work on the launch of their companies or businesses; Innovation means product, process, service or idea that is new, novel, improved; the use of a new product, service or method in industry, business or society subsequent to its creation; Industrial park means an area designed and zoned for manufacturing and associated activities; Innovation park means an area designed and zoned for creativity, invention, innovation and related activities ; Invention has the meaning assigned to the term under the Industrial Property Act 2001; Minister means the Minister for the time being responsible for matters relating to, science, technology and innovation; National Commission for Education and Training has the meaning assigned to the term in the Education and Training Act, 2007; Relevant minister means the minister and or any minister who has responsibility over any matter governed under this Act and the term relevant ministry shall be construed accordingly; Repeal of Cap 250 Repealed Act means the Science and Technology Act, Cap 250 Research is an active, diligent, and systematic process of inquiry in order to discover, interpret or review facts, events, behavior, or theories, or to make practical applications with the help of such facts, laws or theories; it includes research carried out on the indigenous knowledge and technology; Research institute means a research organization or centre whether public or private, accredited under this Act; - 3 -
Research institution means any organization, centre or place whether public or private in which research of any kind is conducted or undertaken by any person; Science means systematized knowledge derived through experimentation, observation and study; Science Park means an area designed and zoned for scientific or technological research and related activities ; Technology means the application of knowledge to meet the goals, goods and services desired by people; Technology Park has the same meaning as the term Science Park ; TIVET Authority means the Technical Industrial Vocational and Entrepreneurship Training Authority established under the Higher Education Act, 2007; Traditional Knowledge; means knowledge, innovations and practices of indigenous and local communities embodying traditional life-styles; the wisdom developed over many generations of holistic traditional scientific utilization of the lands, natural resources, and environment. notice means an improvement notice or a prohibition notice. Improvement notice means Notice for improvements to be done Prohibitive notice means - notice stoppage of activity Definitions 1. In this Act, unless the context otherwise indicates i. Agency means the National Innovation Agency established by section 43; ii. Board means the Board referred to in section 81 iii. Chairperson means the person appointed as chairperson of the Board under section of the institutions established under this Act iv. executive management committee means the executive management committee referred to in section 9; (xiv) - 4 -
v. Executive Secretary means the person appointed as the chief executive officer of the of the institutions established under this Act vi. Foundation means the Kenya National Research Foundation, established by section 80 vii. regulation means a regulation made under this Act; viii. research means the generation, preservation, augmentation and improvement of knowledge by means of scientific investigations and methods in the field of science and technology; ix. Scheduled Science Programme means one of the groups of the scientific programmes listed in the First Schedule of this Act. PART II PROMOTION OF RESEARCH, SCIENCE, TECHNOLOGY AND INNOVATION Minister s responsibility 4. 1) The Minister shall- a) be responsible for the policy on, and the promotion of, research, science, technology and innovation and shall exercise this responsibility in collaboration with stakeholders as provided under this Act; b) in consultation with the Commission periodically review, formulate, develop, and determine the national policy on research, science, technology and innovation to meet the developmental needs of Kenya. c) in consultation with the relevant ministers and other stakeholders, establish mechanisms to ensure adequate dissemination of research findings. d) promote the collaboration and partnership with, and among, all stakeholders in the funding of research, science technology and innovation for development. 2) In carrying out his responsibility under this section, the Minister shall - 5 -
consult the relevant stakeholders. Guidelines and regulations for research Ethics and standards in research Every person to be guided by the guidelines and regulations Institutions to develop research policy 5. The Commission shall formulate and establish guidelines and regulations in accordance with the policy determined under this Act for the governance, management and maintenance of standards and quality in research, science, technology and innovation. 6. The Commission shall initiate policy on standards and ethics in research, science, technology and innovation and establish mechanisms for the enforcement thereof. 7. Every person whether conducting or intending to conduct research or otherwise engaging in research, science, technology and innovation activities in Kenya shall be bound by such guidelines and regulations established under this Act or any other written law. 8. Every institution of research science, technology and innovation in Kenya shall develop and publish research, science, technology and innovation strategy to guide the conduct of research in conformity with the guidelines and regulations issued by the Commission. PART III AUTHORISATION OF RESEARCH, SCIENCE, TECHNOLOGY AND INNOVATION ACTIVITY Application to undertake research, science, technology and innovation activities in Kenya 13. 1) Any person intending to undertake any research, science, technology and innovation activity in Kenya shall make an application in the prescribed manner in that regard for authorization, in accordance with the provisions of this Act. 2) The authority to undertake any research, science, technology and innovation activity in Kenya may subject to the provisions of any other written law, include the authority or permission to access, handle or transfer or move within, from and into Kenya any specified genetic material or any other sample. Activities requiring authorization 14. 1) Without prejudice to the provisions of section 13, any research, science, technology and innovation activity in the following areas shall require authority, license or permit from the Commission:- a) activity that may adversely affect Kenyan culture; b) activity that may adversely affect the environment; c) activity that involves human subjects or tissue; d) activity that involves plant, animal and micro- organisms; - 6 -
e) activity that requires the importation or exportation of animal, plant or micro-organisms; and f) any other activity which in the view of the Commission may adversely affect the lives of Kenyans. 2) The Minister shall, upon consultation with the, Commission from time to time formulate and publish regulations regarding any research, science, technology and innovation activity that may not require authority, licence or permit under the provisions of this Act. Grant of research permit Standards, ethics and guidelines. Delegation of powers by Commission 15. The Commission shall, if satisfied with the application, issue to the applicant a research authority within sixty days of the receipt of the application. 16. The Commission shall ensure the adherence to the set standards, ethics and guidelines. 17. 1) The Commission may, in any appropriate case and in accordance with regulations made under this Act, authorize relevant institutions of education and training or institutions of research, science, technology or innovation to exercise the Commission s function under Section 61 of this Act. 2) The education, training or research referred under subsection (1) are; a) institutions of research, science, technology or innovation registered under this Act; b) institutions of education and training under the various Acts; c) any other institution of education, training, research, science, technology or innovation established under any other written law. Deposit of a copy of the permit 18. 1) Any person authorized to undertake any research, science, technology and innovation activity in a district in accordance with this Act, shall deposit with the Commission a copy of the authority, giving the person authority to undertake research, science, technology and innovation activities in the district. 2) The Commission shall keep a register of persons undertaking research, science, technology and innovation activities in the district and the register may be inspected by any person during normal office hours. Offences 19.1) No person shall undertake research, science, technology and innovation activities in Kenya without first obtaining authority, in accordance with the - 7 -
provisions of this Act. 2) Any person who without authority granted under section 14(1) accesses, handles or transfers or moves within, into or from Kenya any specified genetic or other material shall be guilty of an offence and shall, in addition to any other penalty as may be provided for in this Act or any other written law, have the materials confiscated and be barred from undertaking research, science, technology and innovation activities in the country. 3) Any person who contravenes this section commits an offence. 4) For the purposes of this section, the materials imported into and or exported out of the country shall be deemed to be materials to be declared under the Biosafety Act and the Customs and Excise Act or any other written law. The Commission may stop research activities by unauthorized person 20. 1) The Commission or any person authorized in that behalf by the Commission may stop any person undertaking research, science, technology and innovation activities in any part of Kenya without authority or in contravention of any of the provisions of this Act. 2) Any person who fails to obey an order given under subsection (1) commits an offence. The effective date and life of the permit 21.1) An authority, permit or license issued under this section shall bear the date of issue and shall be effective from that date and shall expire on such a date as may be indicated therein. 2) Provided that the holder of the authority permit or license may apply for the extension thereof and extension shall not be unreasonably withheld. PART IV ESTABLISHMENT, ACCREDITATION, REGISTRATION AND QUALITY ASSURANCE OF INSTITUTIONS Application to the Commission to establish institutions 22. 1) Any person wishing to establish an institution of research, science, technology or innovation shall make an application in the prescribed manner to the Commission specifying where the institution is to be established. 2) In the case of a public institution of research, science, technology or innovation the Minister shall cause an application to be made under this section. - 8 -
3) The application under subsection (1) shall contain- a) a proposal for the establishment of the institution of research, science, technology or innovation in the prescribed form; and b) such other matters as may be prescribed. 4) The Commission shall, within thirty days from the date of the receipt of the application under subsection (1)- a) record the application; b) assess the application on the basis of the District s approved plans; and c) notify the applicant in writing whether the District Board is satisfied with the application or has rejected it. Application for accreditation 23. 1) Where the Commission issues a letter of no objection to the application for the establishment of an institution of research, science, technology or innovation in the district, the applicant may submit the application to the Commission for accreditation upon payment of the prescribed fee. 2) In the case of a public institution of research, science, technology or innovation or a public university, the Minister shall cause an application to be made under this section. Commission to examine application. 24. The Commission shall, within six months of the receipt of an application under section 23 or within such shorter period as it may prescribe,- a) examine the documentation submitted and other relevant information available in respect of that application; b) evaluate and assess the quality of facilities available or intended for use in respect of the proposed institution of research, science, technology or innovation; and c) prepare detailed comments, including any comments for improvements to the facilities, thereon for onward transmission to the person applying to establish the proposed university academic or degree or Diploma awarding institution. The Commission to consult with the Minister and other stakeholders 25. The Commission shall consult with the Minister, relevant minister and other relevant stakeholders and may, if satisfied that it is in the interest of Kenya to do so, issue a license to the applicant to establish a research institute. - 9 -
Appeal against decision of the Commission Offence to establish or conduct research institute without license 26. Any person aggrieved by the decision of the Commission under this section may, within sixty days appeal to the Appeals Tribunal. 27.1) Any person who establishes and or operates an institution of research, science, technology or innovation in contravention of the provisions of this Act commits an offence and shall be liable on conviction to a fine not exceeding one million Kenya Shilling or imprisonment for a term of not less than two years or to such fine and imprisonment. 2) Any property, equipment or other facilities used in an institution of research, science, technology or innovation in contravention of this Act shall be liable to be confiscated by the State. Internal monitoring and evaluation 28. 1) It shall be the responsibility of every institution of research, science, technology or innovation in Kenya to ensure the maintenance of standards, quality and relevance of activities undertaken in the institution in accordance with the standards established under this Act. 2) An institution of research, science, technology or innovation accredited and registered under this Act shall; a) conduct its operations either through its own campus or through another institution accredited for that purpose; b) furnish the Commission on annual basis or on demand with a statement of its programmes at the end of such year or date of demand. 3) Where an institution of research, science, technology or innovation proposes to conduct its operations through another institution accredited for that purpose, such arrangement shall be governed by a written agreement which shall be included in any application submitted in accordance with section 23. External monitoring and evaluation 29. 1) The Commission shall, on its own motion regularly and at least once in every four years, conduct an evaluation of each institution for the purposes of assessing and evaluating the quality of activities and products of such an institution. 2) The Commission may, at any time on the invitation of any institution, conduct an evaluation of each institution for the purposes of assessing and evaluating the quality of research carried out by such institution. 3) The Commission shall, before the commencement of any monitoring and evaluation initiated on its own motion give the institution reasonable notice as may be prescribed, of its intention to undertake such evaluation - 10 -
4) In undertaking monitoring and evaluation under subsection (1), the Commission shall have the power to inquire into the programmes, management or any other relevant matter concerning the institution and shall pursuant thereto, utilize such methods or modalities of monitoring and evaluation as may be prescribed by regulations. 5) Upon completion of monitoring and evaluation as provided for under the sub-section, the Commission shall prepare a report which shall include an evaluation of the overall performance of the institution and, among other things, specify matters requiring rectification, remedy, improvement or enhancement. 6) Upon completion of the report provided for under subsection (4), the Commission shall; a) submit a copy of the report to the Minister, the relevant Minister where applicable and to the governing body of the institution in question for appropriate action; b) take such action as may be appropriate under this Act. 7) The costs of any evaluation and monitoring carried out at the invitation of an institution shall be borne by such an institution. Visitation of institutions 30. 1) Whenever it appears to the Minister that conditions and circumstances in existence in an institution of research, science, technology or innovation are such that a visitation ought to be carried out into the activities, governance and management or, any relevant matter relating to that institution, the Minister may invite the Commission to carry out such visitation. 2) The Commission or its agent shall, in conducting a visitation under subsection (1), have power to; a) interview any officer or employee of the institution or any other person; b) call for, examine and review any documents, reports or information held or kept by the institution; and c) access to any facilities under the institution. 3) An officer or employee of any institution subject to a visitation under this section shall be under obligation to supply such document, report or information as the Commission or its agent may request. 4) Upon completion of a visitation as provided for under this section, the Commission shall prepare a report, a copy of which shall be submitted to - 11 -
the Minister, the relevant minister and the governing body of the institution. Improvement and prohibitive notices 31. This section applies to any activities which are being or are about to be carried on by or under the control of any person, being activities to or in relation to which this Act or the rules made there under apply or will, if the activities are so carried on, apply. (1) If the Commission or any other person authorized in that behalf is of the opinion that a person is contravening any of the provisions of this Act or rules made there under; or has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated, he may serve on that person a notice (in this Part referred to as an improvement notice ) stating that he is of that opinion, specifying the provision or provisions in respect of which he is of that opinion, giving particulars of the reasons why he is of that opinion and requiring that person to remedy the contravention or, as the case may be, the matters occasioning it within such period ending not earlier than the period within which an appeal against the notice can be brought under subsection 2 of this section as may be specified in the notice. (2) If as regards any activities to which this section applies the Commission or any other person authorised in that behalf is of the opinion that, as carried on or about to be carried on by or under the control of the person in question the activities involve or, as the case may be, will compromise national interests, the Commission or any other person authorised in that behalf may serve on that person a notice (in this Part referred to as a prohibition notice ). (3) A prohibition notice shall: a) state that the Commission or any other person authorized in that behalf is of the said opinion; b) specify the matters which in his opinion give or as the case may be, will give rise to the said risk; c) where in his opinion any of those matters involve or, as the case may be, will involve a contravention of any provision of this Act or the rules made there under, state that he is of that opinion, specify the provision or provisions in respect of which he is of that opinion, and the particulars of the reasons why he is of that opinion; and d) direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of paragraph (b) and any associated contraventions of provisions so specified in pursuance of paragraph (iii) have been remedied. - 12 -
(4) A direction given under subsection (3) d) shall take immediate effect if the Commission or any other person authorized in that behalf is of the opinion, and states it, that the risk of serious personal injury is or, as the case may be, will be imminent, and shall have effect to the end of a period specified in the notice in any other case. (5) In order to enforce a prohibition imposed under this section, the Commission or any other person authorised in that behalf may take such measures as he deems fit to ensure that activities are stopped forthwith. (6) Any person who having been served with a prohibition notice under this section continues to carry on the activities to which the notice relates commits an offence and shall on conviction be liable to a fine not exceeding five hundred thousand Kenya Shillings or to imprisonment for a term not exceeding three months or to both. If the contravention in respect of which he is convicted is continued after the conviction, he shall be guilty of a further offence and liable in respect thereof to a fine not exceeding ten one million shillings or to imprisonment for a term not exceeding one year. (7) A person to whom an improvement or a prohibition notice is issued under Section 31 shall comply with the notice notwithstanding that an appeal against its issuance has been lodged. (8) A person who is aggrieved by a notice issued by the Commission or any other person authorised in that behalf under Section 31 may, within fourteen days from the date of such notice, appeal to the tribunal appointed by the Minister under this Act which may, after considering the appeal, by order in writing confirm, revoke or vary the notice. Provisions on prohibition notices and improvement notices. 32. (1) A notice may but need not, include directions as to the measures to be taken to remedy any contravention or matters to which the notice relates, and any such directions may be framed to: a. any extent by reference to any code of practice approved by the Commission; and b. afford the person on which the notice is served a choice between ways of remedying the contravention or matter. (2) Where an improvement notice or prohibition notice, which is to take immediate effect, has been served: (a) the notice may be withdrawn by the Commission or any other person authorised in that behalf at any time before the end of the period specified therein in pursuance of section 32; and (b) the period so specified may be extended by a the Commission or any other person authorised in that behalf at any time when an appeal against the notice is not pending. - 13 -
The Commission or any other person authorized not to disclose information or source of complaints. 33.(1) The Commission or any other person authorized in that behalf shall not disclose any information obtained by him in the course of his duties and the exercise of any of the powers conferred by this Act (including in particular, any information with respect to any process or intellectual property materials or information obtained by him by virtue of any such power) except: a. for the purposes of his functions; b. for the purposes of any legal proceedings or any investigation or inquiry authorized by Government; or c. with the relevant consent, that is to say, in the case of information furnished in pursuance of a requirement imposed by this Act, the consent of the person who furnished it, and, in any other case the consent of a person having responsibilities in relation to the research activity where the information was obtained. (2) Subject to subsection (1), no such authorized person shall divulge to any person the source of any complaint bringing to his notice any breach of any of the provisions of this Act. (3) An authorized person who contravenes the provisions of subsection (1) and (2) commits an offence. Indemnity of an authorised person. 34. No matter or thing done by the Commission or any other person authorised in that behalf shall if the matter or thing is done bonafide for the executing of the functions, powers or duties under this Act, render the officer personally liable for any action, claim or demand whatsoever. PART V STORAGE, DISSEMINATION, COMMERCIALIZATION, APPLICATION AND UTILISATION OF PRODUCTS OF RESEARCH, SCIENCE, TECHNOLOGY AND INNOVATION Storage Dissemination, commercialization, utilization and application Findings to be published 33. The products, processes, findings and information regarding research, science, technology and innovation shall be stored in such manner as shall be prescribed under this Act. 34. Research, science, technology and innovation shall be disseminated, commercialized, utilized and applied in such a manner and mode as to ensure that Kenyans benefit from scientific, technological creativity, invention and innovation in accordance with this Act and any other written law. 35. 1) Subject to the relevant intellectual property law and any other written law, every person conducting undertaking research, science, technology and innovation activities or investigations in any field in Kenya shall, on completion of such activity or periodically as the Commission may determine, publish the findings in such manner as - 14 -
may be prescribed. 2) A copy of the report of the findings shall be deposited with the Commission, the Kenya National Technology Acquisition Office established under Section 37 and the institution in which the research, science, technology and innovation activities were carried out or conducted. 3) Any person who contravenes the provisions of this section commits an offence. Non-authorization of reproduction, dissemination or use of findings 36. 1) Save and except as may be provided for otherwise in this Act or any other written law, no person or institution with whom the published findings are deposited with the Kenya National Technology Acquisition Office established in accordance with section 37 of this Act, may reproduce, publish, disseminate or use such findings without the authority of the owner. 2) Notwithstanding that authority has been obtained under sub section (1), the user of any research, science, technology and innovation processes or products shall acknowledge the author or owner appropriately. 3) Any person or institution who contravenes this subsections (1) and (2) commits an offence. PART VI - THE KENYA NATIONAL TECHNOLOGY ACQUISITION OFFICE Establishment of Kenya National Technology Acquisition Office (KENTAO) 37. 1) There is hereby established the Kenya National Technology Acquisition Office (KENTAO) as a body corporate with perpetual succession and a common seal. 2) The Office shall in its corporate name be capable of- a) suing and being sued; b) taking, purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property; c) doing or performing all such other things or acts for the proper performance of its functions under, and in the furtherance of the provisions of this Act, which may lawfully be done or performed by a body corporate. - 15 -
3) The provisions of the Second Schedule shall mutatis mutandis apply to the Office. Composition of the Office 38. The Office shall be composed of a chairperson and fifteen (15) other members appointed by the Minister as follows: a) the Permanent Secretary in the Ministry responsible for matters relating to research, science, technology and innovation; b) the Permanent Secretary in the Ministry responsible for matters relating to education and training; c) the Permanent Secretary in the Ministry responsible for matters relating to trade and industry; d) the Permanent Secretary in the Ministry responsible for matters relating to finance; e) the Secretary of the National Commission for Science, Technology and Innovation; f) four eminent researchers, scientists and innovators in physical and social sciences nominated by the relevant umbrella bodies from industry, commerce and professional organizations; g) one researcher, scientist, or innovator nominated by the umbrella organization conducting research in traditional knowledge; h) five eminent researchers, scientists and innovators from public and private research institutions and universities. Functions of the Office 39. Subject to the provisions of the relevant intellectual property laws, the functions of the Office shall be to: a) exercise overall responsibility in applying and utilizing research, science, technology and innovation; b) collaborate with the Foundation in mobilizing resources to promote the dissemination, application and utilization of research, science, technology and innovation; c) formulate guidelines to govern the operations of the technology acquisition and transfer offices; d) formulate guidelines to govern access to and use of the resource centres; - 16 -
e) facilitate and promote access to funds from venture capital for entrepreneurship and development; f) ensure the dissemination and application of the results and findings of research; g) develop partnerships and linkages for investment in national research, science, technology and innovation; h) establish guidelines in human resource development for science and technology in consultation with the Minister; i) secure the following, inter alia: i. the storage, dissemination and application of research results and research findings; ii. the transfer and dissemination of innovation and transfer of technology to all sectors of the economy; j) carry out independently or in co-operation with any appropriate person, body of persons, agency or institution such surveys and investigations as the Office may consider necessary for its tasks; k) establish research, science, technology and innovation parks; and: l) perform any other function to implement its mandate under this Act or any other written law. Technology Transfer Offices 40. 1) There shall be Technology Acquisition Offices in institutions engaged in research, science, technology and innovation and institutions of education and training. 2) The functions of the technology transfer offices in their respective institutions of jurisdiction shall be to:- a) promote the conduct and storage of the products of research, science, technology and innovation; b) develop a data bank and an inventory of new technologies, creations, inventions and innovations; c) promote the dissemination, application and utilization of research, science, technology and innovation in industry the community and among other stakeholders in the respective area of jurisdiction; d) develop partnerships and linkages with industry and other - 17 -
production units including informal sector for purposes of translating research, science, technology and innovation into products and processes; e) endeavor to establish research, science, technology and innovation park; f) encourage and promote creativity, inventiveness and innovation; and g) perform any other function to facilitate dissemination, application and utilization of research, science, technology and innovation. Resource centres 41. 1) The Office shall establish a National Resource Centre. 2) Every Technology Transfer Office established in an institution under section 40 (1) shall have a resource centre. 3) The National Resource Centre and the associated institutional resource centres shall- a) develop a data bank of researchers, scientists, technologists, innovators and creators, as well as research and innovation conducted in or outside Kenya; b) maintain and operate a resource library of the findings; c) establish a science, technology and innovation park; d) maintain an Internet access point; and e) perform any other function assigned by the Office under this Act. PART VII THE NATIONAL INNOVATION AGENCY Establishment of National Innovation Agency Powers and duties of National Innovation Agency 43. There is hereby established a juristic institution known as the National Innovation Agency which is capable of suing and being sued in its own name and of performing, subject to this Act, such acts as are necessary for or incidental to the carrying out of its objects. 45. The Agency may on such conditions as the Board may determine: a) Approve priority innovations for commercialization and uptake by the - 18 -
National Acquisitions Office b) provide financial and any other assistance to any person, consortium or enterprise for the purpose of enabling that person, consortium or enterprise to develop any technological innovation or invention; c) establish a company in accordance with the provisions of the Companies Act either independently or in collaboration with any person, establish such a company for the purpose of developing or exploiting any technological innovation or invention, and to that end acquire such interest in and such control over such company as it may be necessary; d) acquire any interest in any consortium or enterprise undertaking the development or exploitation of any technological innovation or invention; e) draw together and integrate the management of different technological innovation, invention, incubation and diffusion initiatives in Kenya; f) develop the national capacity and infrastructure to protect and exploit intellectual property derived from publicly financed research and finance and provide direction-setting capabilities; g) apply for patents or the revocation thereof, oppose the grant of patents and institute any action in respect of any infringement of patents; h) acquire any right in or to any technological innovation, invention or patent from any person, consortium or enterprise, or assign any person, consortium or enterprise any right in or to any technological innovation or invention or patent; i) purchase or hire land or buildings or erect buildings and alienate such land or terminate or assign any such hire and, in the case of buildings in which the business of the Agency is being conducted, let such portions as are for the time being not required for the business of the Agency; j) establish such offices, including regional offices, as the Board in consultation with the Minister may determine; k) purchase, take on lease, hire out or alienate any movable property; l) take such security as it may deem fit, including special mortgage bonds over immovable property, notarial bonds over movable property, pledges of movable property, cessions of rights and in general any other form of cover or security; and m) generally deal with any matter necessary or incidental to the performance of its functions in terms of this Act. - 19 -
46. (1) Where the Agency enters into any transaction with any person, consortium, enterprise or company in terms of section 45 (a)(i),(ii) and (iii), the Agency must, with the concurrence of the Minister, ensure that the Agency is represented in the Board of such person, consortium, enterprise or company. National Innovation Agency Board (2) Where a right in or to any technological innovation or invention has, in terms of section 45(c), been acquired by the Agency or assigned by the Agency to any person, consortium or enterprise, the Agency or such person, consortium or enterprise, as the case may be, regarded as the assignee of the discoverer or inventor of such technological innovation or invention. 47 (1) The Agency shall have a Board of Management consisting of:- a) the Permanent Secretary in the Ministry responsible for matters relating to research, science, technology and innovation; b) the Permanent Secretary in the Ministry responsible for matters relating to education and training; c) the Permanent Secretary in the Ministry responsible for matters relating to trade and industry; d) the Permanent Secretary in the Ministry responsible for matters relating to planning; e) the Permanent Secretary in the Ministry responsible for matters relating to finance; f) the Secretary of the National Commission for Science, Technology and Innovation; g) the Chief Executive Officer of the Office or his representative; Disqualification for appointment to the Board h) four eminent researchers, scientists and innovators in physical and social sciences nominated by the relevant umbrella bodies from industry, commerce and professional organizations; i) one person representing organizations conducting research in traditional knowledge; and j) five eminent researchers, scientists and innovators from public and private research institutions and universities. 48. A person may not be appointed or continue as a member of the Board if such person is a) convicted of an offence and sentenced to imprisonment without the option of a fine, or in the case of fraud, to a fine or imprisonment; - 20 -
Removal from office and vacation of office b) elected as a member of Parliament, or the council of a local authority c) not a Kenyan citizen or ceases to be a Kenya citizen; d) removed from a position of trust by a competent court of law; or e) suffers pecuniary embarrassment 49. (1) The Minister may, after consultation with the members of the Board, remove a member of the Board from office on account of:- a. misconduct; b. inability to perform the duties of his or her office efficiently; c. absence from three consecutive meetings of the Board without the leave of the Board, except on good cause shown. Term of office of Board members (2) If a member of the Board ceases to hold office or is removed from office in terms of subsection (1) the Minister may appoint a person who meets the criteria contemplated in sub-section 1(c) in that member s place for the remaining part of the term of office. (3) A member must vacate his or her office if:- a) he or she is disqualified in terms of sub-section 1; or b) he or she tenders his or her resignation to the Minister and the Minister accepts the resignation. Remuneration of members of Board Meetings of Board 50. (1) Members of the Board hold office for a period of four years and are eligible for reappointment on expiry of their term. 2) When reappointing members of the Board, the Minister shall ensure that the term of office of members of the Board will not expire at the same time. 3) A member may not serve more than two consecutive terms. 51. Members of the Board receive such remuneration and allowances as the Minister, with the concurrence of the Minister of Finance, may determine. 52. 1) The chairperson shall preside at a meeting of the Board. 2) If the chairperson is not present at the meeting of the Board, the - 21 -
members of the Board present at that meeting shall elect from among their number a member to preside at such a meeting. 3) The Board shall meet at least four times a year at such time and place as the Board may determine. 4) The Board may determine the procedure for its meetings. 5) The chairperson a) may convene a special meeting of the Board; and b) shall, within 14 days of receipt of a written request signed by at least two thirds of the members of the Board to convene a special meeting, convene such a special meeting. 6) A quorum for a meeting of the Board is two thirds of the members eligible to vote at that meeting. 7) A decision of the Board shall be taken by resolution of the majority of the members present at a meeting of the Board, and, in the event of an equality of votes the person presiding at the meeting has a casting vote in addition to his or her deliberative vote. Appointment of the officers of the Agency 8) A member of the Board may not vote or in any manner be present during or participate in the proceedings at any meeting of the Board if, in relation to any matter before the Board, he or she has any interest which precludes him or her from performing his or her functions as a member of the Board in a fair, unbiased and proper manner. 53. (1). The Minister shall on the recommendation of the Board, appoint a suitably skilled and qualified person as the Chief Executive Officer who shall be responsible for the management of the affairs of the Agency. 2) The Chief Executive Officer shall serve, on such terms and conditions as the Board may determine Committees of Board 3) The Chief Executive Officer is responsible for the administrative control, organisation and discipline of the employees of the Agency and for ensuring compliance with applicable labour legislation. 4) The Board of the Agency may appoint, employees of the Agency or receive on secondment such persons as are necessary to enable the Agency to perform its functions. 54. (1) The Board may establish one or more committees to perform such functions as the Board may determine. - 22 -