In a major victory for the civil society, the High Court in Nairobi has declared several provisions of the Public Benefit Organizations (PBO) Act, 2013 unconstitutional.
The court’s decision has been termed by activists as “timely and significant win” for the freedom of association, privacy and fair administrative action.
The case, filed by David Calleb Otieno, the Civil Society Reference Group and the National Public Benefit Organizations Consortium, challenged provisions of the PBO Act that came into force in May 2024 after a decade-long dormancy.
Justice Bahati Mwamuye presided over the constitutional and human rights petition.
The court's decision strikes at the heart of sections that threatened to undermine the independence of public benefit organizations through re-registration requirements, forced association, lack of institutional independence in regulatory bodies, and overreach into privacy.
A win against regressive regulation
The court nullified Paragraphs 5(1) and 5(2) of the Fifth Schedule, which required NGOs previously registered under the old NGO Co-ordination Act to apply afresh for recognition under the new PBO Act.
Justice Mwamuye found the requirement “an unjustified, unreasonable, and procedural unfair limitation” on the freedom of association and administrative justice, declaring it violated Articles 36(3)(a), 47, and 27 of the Constitution.
“Requiring already compliant organizations to re-register afresh on pain of deregistration undermines legal certainty and fair process,” the court noted.
The Petitioners argued that such re-registration was discriminatory, pointing out that entities under similar legal reforms, such as companies and political parties, were not subjected to such treatment.
The court agreed, terming the provision an unnecessary burden and a violation of legitimate expectations.
Justice Mwamuye ordered the PBO Authority to “automatically and unreservedly transition and register” all NGOs previously registered under the repealed law without requiring new applications.
Protection of privacy
In another decisive finding, the court declared Section 32 of the PBO Act unconstitutional for infringing on the right to privacy.
The section had mandated broad disclosure of private information including member lists, donor identities, and internal records.
“While transparency is important,” the judge stated, “privacy and accountability must be balanced.”
The Court found that the provision failed to align with the Data Protection Act, lacked sufficient safeguards, and could discourage participation in sensitive causes due to fear of exposure.
Independence of regulatory bodies questioned
The judgment also invalidated Section 35, which governs the composition of the PBO Authority Board, ruling that its structure gave undue influence to the Executive.
“The Board’s lack of independence renders it unsuitable to discharge quasi-judicial functions affecting rights of PBOs,” the court declared, citing Articles 50(1), 160, and 172 of the Constitution.
Justice Mwamuye further faulted the appointment structure of the PBO Disputes Tribunal under Section 50.
The Court found that bypassing the Judicial Service Commission in appointments and allowing the PBO Authority to determine remuneration compromised the tribunal’s independence.
These flaws, the judge ruled, rendered Sections 50(1), 50(5), and 50(6)(c) unconstitutional for violating Articles 50(1), 160(1), 172(1)(c), and 230(4)(a).
Freedom of association upheld
Sections 21(1) and 21(9) of the Act, which appeared to compel all PBOs to join the National Federation, were also struck down.
The court ruled that any implication of compulsory affiliation violated Article 36(2) of the Constitution.
“The Federation may continue to exist and operate... but the State shall not by law or policy impose it as an exclusive or compulsory representative of the PBO sector,” the ruling read.
Section 23(2), which restricted recognition of PBO forums based on an undefined “significant number” of members, also failed the constitutional test.
The court termed it vague, arbitrary, and an unjustifiable limitation on the freedom of association.
Fair hearing and administrative justice
The court declared Sections 18(1)-(3) and 19(1)(b), which allowed the PBO Authority to suspend or cancel registration based solely on its own determination, unconstitutional.
“These provisions fail to provide a fair hearing prior to suspension or cancellation,” the judge ruled, noting that the same authority acting as investigator, accuser and judge violated natural justice and the right to an impartial hearing.
Justice Mwamuye observed that the penalties could be imposed for even minor infractions without an oral hearing, making the process “neither fair nor proportional.”
A pushback against autocracy
Reacting to the judgment, lawyer Kevin Oriri, who represented the Petitioners, said the decision was a defining moment for civil liberties in Kenya.
"The High Court (Justice Bahati Mwamuye) has delivered a timely and significant win for the Freedom of Association, the Right to Fair Hearing/Fair Administrative Action and the Right to Privacy in the face of an increasingly autocratic regime,” he said.
“This is a much- needed push back by civil society organisations that were on the cusp of being regulated by some extremely regressive sections of the Public Benefit Organizations Act.”
Court orders
In total, the court issued seven declaratory orders, including nullifying the re-registration requirement, invalidating the provisions compelling federation membership and declaring the regulatory board and tribunal structures unconstitutional.
Additionally, the court invalidated the privacy-invading disclosure obligations and ordered automatic recognition of previously registered NGOs.
