Analysis of the Private Security regulations by KN Law LLP

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The Private Security (General) Regulations, 2019 (the “Regulations”) were formulated to operationalize the Private Security Regulation Act, No. 13 of 2016 (“the Act”). The Regulations came into effect on July 05, 2019 and seek to address the status, administration and operations of private security service providers in Kenya.

The main objective of the Act and the Regulations is to bridge the regulatory gap in the private security sector which has largely been self-regulating with every entity having its own guidelines and accountability mechanisms. Private security agencies play a crucial role in the overall security status of the country and due to the level of public interest attached, there was need for the sector to be regulated.

The Act has defined “private security services” to include installation of burglar alarms and other protective equipment, private investigations and consultancy, car tracking or surveillance, close-circuit television, provision of guard dog services, security for cash in transit, and any other private security service as may be determined from time to time by the Board of the Private Security Regulatory.

Key highlights of the new law

a. Application for Registration as Private Security Providers

The Regulations require all private security service providers to register with the Authority within six months after the gazettement of the Regulations. The requirements for registration include:

• a copy of the national identity card or valid passport of the person, in the case of individuals;
• a copy of the certificate of incorporation or other formal registration document of the firm;
• audited accounts of the firm or six months bank statements; and
• valid tax compliance certificate

Failure to ensure that a private security service is registered with the Authority is an offence with a financial penalty not exceeding five hundred thousand shillings or such fine and imprisonment in the case of a natural person and two million shillings in the case of a firm or corporate as stipulated under the Act.

b. Employment and Training of Personnel

The Regulations require private security providers to carry out a vetting exercise to ensure its employees have undergone security training, to authenticate employment history, character, residence and any other relevant information.

To ensure credibility of employees of a private security provider, the providers will be required to demand and verify the following information from the candidates during their application for employment:

  • security training certification issued by the Authority;
  • accurate employment history;
  • names and contacts of three referees not related to him or her, one of whom shall be engaged in security work or is a security trainer; and
  • residential physical address including street name, estate and house number supported by evidence of a utility bill, rent payment receipt or lease agreement.
  • Private security providers will also be required to ensure that their employees undergo an annual mandatory security training at an institution licensed by the Authority and an annual mandatory security training assessment at an institution licensed by the Authority.

The strict recruitment measures are to protect members of the general public who engage the private security providers for their services as cases of crime by employees of private security providers have been on the rise.

The rigorous regulatory process also applies to the directors of the private security firms. Every director, partner, trustee, administrator, management staff and employee of a private security provider will be required to undergo training within six months after gazettement of the Regulations as prescribed by the Authority.

c. Cooperation with National Security Organs

The Regulations encourage private security providers to cooperate with national security organs. The Inspector- General of the National Police Service or the Cabinet Secretary may require the private security service provider to cooperate for purposes of maintenance of law and order, preventing or mitigating a national disaster, incident planning, sharing security information and sharing expertise and training.

Private security providers are obligated to cooperate with the National Police Service to provide information which they gather in the course of duty and which reasonably appears important for purposes of preventing the commission of a crime, apprehending a person suspected to have committed a crime, mitigating or eliminating any form of security threat, sharing actionable intelligence or serious incident reports or any other lawful purpose.

d. Equipment and Tools of Trade

Private security service providers will also be required under the Regulations to adopt a distinct garment as their uniform which should not be similar to any of the uniforms worn by any disciplined forces or any national security organ in Kenya.

The specific requirements for the uniforms are that:

  1. the top front part of the uniform be fitted a badge with a legibly printed insignia containing the words “PRIVATE SECURITY” and a company patch containing the company’s name.
  2. On the top back part of the uniform shall be imprinted.
  3. The word “SECURITY” should be in legible characters.

The Regulations have also provided an itemized list of the equipment and tools approved by the Authority for use by private security service providers.

e. Private Security Fidelity Fund

The Regulations provide that the Private Security Fidelity Fund (“the Fund”) will be used to defray the administrative and operational expenses of the Authority, for organizing training workshops and seminars for private security providers and for ensuring full implementation of the Act.

f. Exercise of the Power of Arrest

Private service security providers are empowered by the Regulations to arrest a person who is suspected to have committed an offence. Once such an arrest has been effected, the Regulations provide that the arrested person must be immediately handed over the person to the nearest police. station. However, private security providers have been expressly prohibited from the use of violent means in arresting any suspected offender and may only employ force when:

a) non-violent measures have failed;
b) to prevent escape.

A private security service provider who uses any form of force shall immediately, report to the police station or post, explaining the circumstances that necessitated the use of force and the police. Exercise of the Power of Arrest Private service security providers are empowered by the Regulations to search a person on entry or exit of a building or property without a warrant. However, every search shall be conducted in the presence of at least two officers and a body search involving touching of the person shall be conducted by an officer of the same sex.

Conclusion

National security is at the centre front of a country and its economic agenda. The Regulations are meant to give to ensure that the private security industry, a sector that has grown in leaps over the years, is held accountable and that standards of professionalism are upheld.

With proper enforcement, the Regulations will ensure public safety and security is adhered to and that employees of the private security firms are trained and their welfare is catered for.

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