In a ruling delivered in Petition No. E519 of 2024, the High Court of Kenya struck down several provisions of the Public Benefits Organizations Act, 2013 (PBO Act), citing violations of constitutional rights and principles. The petition was filed by David Calleb Otieno, the Civil Society Reference Group, and the National Public Benefit Organizations Consortium, who challenged the legality of the Act’s implementation and its impact on civil society organizations.
The PBO Act, which came into force on 14th May 2024 via Legal Notice No. 60 of 2024, revoked the previous NGO Coordination Act. The PBO Act was designed to establish a transparent regulatory framework for organizations serving the public good. However, the petitioners argued that key provisions of the Act undermined the autonomy of Public Benefit Organizations (PBOs), entrenched state control, and suppressed civil society participation.
Among the contested provisions were requirements for mandatory re-registration, compulsory membership in a national federation, disclosure of personal data, and the structure of the PBO Authority and Disputes Tribunal. The petitioners contended that these provisions violated constitutional guarantees including the freedom of association, the right to privacy, the right to fair administrative action, and the right to a fair hearing. The key findings of the court were as follows:
a. Mandatory Registration
Justice Mwamuye, presiding over the matter, found the requirement for fresh registration of NGOs as PBOs unreasonable and unjustified limitation on the freedom of association and administrative justice. The court held that the blanket re-registration requirement imposed unnecessary regulatory hurdles on already compliant entities, without demonstrating a pressing public need or exploring less restrictive alternatives.
b. Disclosure of personal data
Section 32 of the Act, which required PBOs to disclose personal details of their governing members, was found to infringe the right to privacy under Article 31 of the Constitution. The provision lacked adequate safeguards for the protection of personal data and was overly broad in scope.
c. Compulsory membership in a National Federation
Sections 21(1) and 21(9) of the Act, which mandated membership in the National Federation of PBOs, were struck down for unjustifiably limiting the freedom of association. The court emphasized that forced affiliation to a single umbrella body was neither necessary nor proportionate in a democratic society.
Similarly, Section 23(2), which restricted recognition of PBO forums to those representing a “significant number” of organizations as prescribed by the Cabinet Secretary, was found to be vague, exclusionary, and unconstitutional.
d. Right to fair hearing
Sections 18(1)–(3) and 19(1)(b) of the Act, which empowered the PBO Authority to suspend or cancel registration based on subjective criteria, were declared unconstitutional for failing to guarantee fair hearing and administrative justice.
Implications
As a result of the Court’s decision, NGOs previously registered under the repealed NGO Coordination Act are not required to re-register as PBOs. The PBO Authority must automatically transition these organizations into the new framework. PBOs are no longer compelled to join the National Federation, nor are they required to disclose sensitive personal data without proper safeguards. Enforcement actions must now adhere to principles of fair hearing and due process.
Conclusion
This decision marks a significant victory for civil society in Kenya, reaffirming the constitutional protections that safeguard organizational autonomy, privacy, and procedural fairness. It sets a strong precedent for future regulatory reforms and underscores the judiciary’s role in upholding democratic values.
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Authored:
Fridah Gatwiri and Glory Kang’oria
