On 18 July 2025, the High Court of Kenya, in Petition No. E519 of 2024, issued a landmark judgment declaring multiple provisions of the Public Benefit Organizations (PBO) Act, 2013 unconstitutional.

The case, filed by civil society stakeholders, challenged sections of the Act on the grounds that they infringed upon constitutional rights, including:

• Freedom of association
• Right to privacy
• Right to fair administrative action

This decision reinforces the imperative for lawful, proportionate, and rights-respecting regulation of civil society organizations (CSOs), while safeguarding their operational autonomy.

Key Findings from the Court

1. Re-registration Requirement Declared Invalid

The Court struck down Paragraphs 5(1) and 5(2) of the Fifth Schedule, which required NGOs previously registered under the repealed NGO Coordination Act to re-apply for recognition.

• This blanket re-registration was deemed:
  • Unnecessary
  • Procedurally unfair
  • In violation of:
    • Legitimate expectation
    • Non-discrimination (Article 27)
    • Fair administrative action (Article 47)

Directive: These NGOs should transition automatically into the current framework without the need for fresh registration.

2. Privacy Violations under Section 32

The Court ruled that Section 32 of the Act was unconstitutional insofar as it compelled the disclosure of personal information—including names of members, donors, and beneficiaries—without adequate legal safeguards.

• This violated the right to privacy (Article 31(c))
• The Court emphasized that:
  • Financial accountability is valid,
  • But must be balanced against privacy protections
  • Data handling must comply with the Data Protection Act, 2019

3. Lack of Independence in the Regulatory Board

The structure of the Public Benefit Organizations Regulatory Authority Board—as outlined in Section 35 and the Third and Fifth Schedules—was found unconstitutional.

• The Board, primarily appointed by the Executive, was not sufficiently independent to carry out its quasi-judicial functions.
• Violated provisions:
  • Article 50(1) – Right to a fair hearing
  • Article 160 – Independence of the Judiciary
  • Article 172 – Judicial Service Commission oversight

The Court emphasized the need for an impartial and transparently appointed Board to oversee regulatory decisions.

4. PBO Disputes Tribunal Deemed Unconstitutional

Section 50, which established the PBO Disputes Tribunal, was declared unconstitutional.

• The exclusion of the Judicial Service Commission (JSC) from appointment and disciplinary processes violated:
  • Article 172(1)(c)
  • Article 230(4)(a)
• Allowing the PBO Authority to set the Tribunal’s remuneration created a conflict of interest, compromising its financial and institutional independence.

5. Compulsory Federation Membership Invalidated

Sections 21(1) and 21(9), which effectively compelled all PBOs to join a National Federation, were struck down.

• The Court ruled this violated freedom of association (Article 36(2)), which includes the right not to join an association.

Implication: Federation membership must be voluntary, and PBOs should not face penalties or disadvantages for choosing not to participate.

6. Unfair Recognition of PBO Forums

Section 23(2) was ruled unconstitutional for granting the Cabinet Secretary broad discretionary powers to recognize only forums that represent a “significant number” of PBOs.

• The provision was found to be:
  • Vague
  • In violation of the principle of legality
  • Open to arbitrary exclusion, contrary to Article 36

Recognition processes must be fair, inclusive, and transparent.

7. Suspension and Cancellation Provisions Breach Due Process

The Court invalidated Sections 18(1)(3) and 19(1)(b) for failing to uphold the right to fair administrative processes.

• These provisions allowed the Authority to:
  • Suspend or cancel registration
  • Do so without an oral hearing
  • Combine investigative and adjudicative roles

This violated:

• Article 47 – Fair administrative action
• Article 50 – Right to a fair hearing

The Court found the law gave excessive, unchecked discretion to the Authority, even in minor cases.

What This Means for Civil Society and PBOs

This ruling marks a critical affirmation of constitutional protections for civil society in Kenya. It safeguards the independence of PBOs and ensures state regulation does not override fundamental rights.

Recommended Actions for PBOs, NGOs & Sector Stakeholders:

• Do not submit to compulsory re-registration.
• Do not disclose personal data unless explicitly required by law.
• Engage voluntarily with the National Federation.
• Monitor upcoming legal and administrative reforms from the PBO Authority.

Written by Ted Gerald