What the High Court’s Decision Means for Kenya’s Public Benefit Organisations

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The High Court of Kenya delivered a landmark judgement in Petition No. E519 of 2024: David Calleb Otieno & Others -vs- Attorney General & Others, which has been hailed as a significant win for Public Benefit Organisations (PBOs) and will have far-reaching implications for the non-profit sector. The Petition, filed by key civil society actors like The Civil Society Reference Group and The National Public Benefit Organizations Consortium, challenged several provisions of the Public Benefit Organizations Act 2013 (the PBO Act), alleging that they violate multiple constitutional rights and principles, including the freedom of association, the right to privacy, the right to fair administrative action, and the right to a fair hearing.

The Court held multiple provisions of the PBO Act as unconstitutional, signalling a decisive victory for PBOs. But beyond the legal win, the judgment provides clarity on the constitutional boundaries of state regulation over civic space, particularly with regard to freedom of association, privacy, and fair administrative action.

We analyse below the key takeaways from the decision:

1. Requirement for fresh registration

   Paragraphs 5(1) and 5(2) of the Fifth Schedule of the PBO Act required organisations that were registered under the repealed Non-Governmental Organisations Co-ordination Act to apply afresh for registration as PBOs under the PBO Act. The Petitioners argued that this was discriminatory and undermines the right to fair administrative action under Article 47 of the Constitution, as they had a legitimate expectation that their registration was of indefinite duration unless cancelled for cause under the procedures of that law. The court held that the requirement for fresh registration constitutes an unjustified, unreasonable, and procedurally unfair limitation on the rights guaranteed under Articles 36(3)(a), 47, and 27 of the Constitution, and thereby declared this requirement unconstitutional.

   
   

2. Requirement to disclose information

   Section 32 of the PBO Act requires that every PBO must submit annual reports to the PBO Authority, including financial statements and presumably other information prescribed by Regulations. It was the Petitioners argument that Section 32 either explicitly or implicitly requires disclosure of what would ordinarily be personal information – for example, lists of members or donors, minutes of internal meetings, personal addresses, and contacts of officials, thus violating Article 31(c) of the Constitution, which guarantees the right not to have information relating to one’s private affairs unnecessarily required or revealed. The court found Section 32 of the PBO Act to violate Article 31(c) of the Constitution by unjustifiably intruding upon the privacy of individuals involved in PBOs.

   
   

3. Composition of the PBO Authority’s Board

   Section 35 of the PBO Act provides for the establishment and composition of the Board of the PBO Regulatory Authority. It comprises members appointed largely by the Cabinet Secretary, with representation from various state bodies and civil society. The Petitioners argued that the Board, as established under the said Section 35, fails to satisfy the constitutional standards of independence, transparency, and separation of powers on account of the government’s dominant influence in the appointment process, which they argued undermines the Board’s impartiality, particularly given its quasi-judicial mandate, including the authority to suspend or revoke the registration of PBOs. The Court found that the composition of the PBO Authority Board violates Articles 50(1), 160, and 172 of the Constitution for lack of independence.

4. Establishment and appointment of the PBO Disputes Tribunal

   Section 50(1) of the PBO Act establishes the PBO Disputes Tribunal, with members appointed by the Chief Justice and approved by the National Assembly. The Chief Justice may remove members of the Tribunal, whilst the PBO Authority, in consultation with the SRC, is mandated to set the remuneration of the members. The Petitioners challenged the Tribunal’s structure, independence, and appointment process, arguing that as a body exercising judicial authority, it must meet the constitutional standards of independence under Articles 50(1), 160, and 172. The court agreed with the Petitioners and held that the exclusion of the JSC under Article 172 is a major deviation from constitutional requirements. Further, the court held that the National Assembly’s approval adds a political element that undermines the Tribunal’s independence.

5. Freedom of Association

   Sections 21(1) and 21(9) of the PBO Act establish a Federation for all registered PBOs, creating the impression of compulsory membership. The Petitioners argue this violates Article 36(2) of the Constitution, which guarantees every person the right to freedom of association, including the freedom not to join or be compelled to join an association of any kind. The court found that forcing PBOs to associate explicitly or implicitly is not justified under Article 24 of the Constitution, as it is neither necessary nor proportionate. PBOs should be free to join, form, or avoid umbrella groups based on their needs.

   
   

6. Recognition of PBO forums

   Section 23(2) of the PBO Act provides that only self-regulation forums representing a "significant number" of PBOs, as prescribed by the Cabinet Secretary, shall be recognised by the PBO Authority. The Petitioners argued that the provision violates Article 36(1) and (2) by setting vague and discretionary criteria that unjustly deny legal recognition to legitimate PBO forums, undermining freedom of association. The court held that Section 23(2) places an unjustified restriction on PBOs' freedom of association and does not meet the requirements of Article 24 of the Constitution by effectively permitting the State to decide which PBO associations can exist legally, contrary to the principles of an open and democratic society.

   
   

7. The rights to fair administrative action and a fair hearing.

   Sections 18(1) to 18(3) of the PBO Act give the PBO Authority power to enforce compliance, including suspending or cancelling a PBO’s registration if it believes the organisation has breached the PBO Act or its own constitution. The Authority may issue a default notice, invite written responses, and, if the explanations are deemed unsatisfactory, impose penalties or cancel registration. Additionally, Section 19(1)(b) permits cancellation if a PBO operates contrary to its constitution. The Petitioners contended that these provisions violate Articles 50(1) and 47 of the Constitution by denying PBOs a fair chance to be heard before facing penalties, whilst Section 19(1)(b) is overly broad and subjective, allowing arbitrary cancellation. The court found that the impugned sections cannot stand as they are to the extent that they fail to provide a fair hearing prior to the suspension or cancellation of the PBO’s registration.

   
   

   Key takeaways from the Decision

   1. NGOs previously registered under the old law are automatically deemed PBOs; no fresh application is required. This eliminates regulatory uncertainty and operational disruption.

   2. Enforcement actions (such as suspension or cancellation of registration) must include procedural safeguards, including the right to a fair hearing before an independent body.

   3. The decision calls for the reconstitution of both the PBO Regulatory Authority Board and the Tribunal in line with constitutional standards of independence and transparency.

   4. The decision underscores that even organisations operating in the public sphere enjoy constitutional privacy protections, especially for donors, members, and beneficiaries.

   5. Membership or affiliation of a PBO to the National Federation of PBOs is strictly voluntary, and no PBO shall suffer any disadvantage or sanction for choosing not to join the Federation.

      
      

   What impact does the judgment have on the PBO Regulations?

   The Draft PBO Regulations 2025, especially Regulation 16 (suspension or cancellation), will need to be revised to explicitly entrench fair hearing procedures e.g., mandatory notice, reasons, opportunity to respond, and right to appeal.

   
   

   Conclusion

   In conclusion, this decision is a major win for civil society actors, affirming constitutional protections against state overreach and reinforcing the autonomy and rights of PBOs in Kenya.

   
   

   Please note that this is not legal advice and is intended primarily for information purposes. If you require tailored advice or further information, please contact us on sarinke@mckayadvocates.com