FROM OVERSIGHT TO OVERREACH?: THE HIGH COURT JUDGMENT ON THE PUBLIC BENEFITS ORGANIZATIONS ACT IN KENYA

 

#The quieter the civic space, the louder the silence of democracy.#

Introduction: A Reckoning Long Delayed

In May 2024, Kenya activated a legal time bomb that had been sitting on for over a decade. The Public Benefit Organizations Act, 2013 (the “PBO Act”) was brought into force through Legal Notice No. 60 of 2024. Passed in the spirit of reform but delayed by political reluctance, the Act promised clarity, order, and transparency in the governance of civil society. However, buried beneath its aspirational objectives were deep regulatory flaws.

Petition No. E519 of 2024, filed shortly after the Act’s operationalization, challenged those flaws. And in June 2025, the High Court delivered a Judgment that did not merely interpret the law but fundamentally reshaped the balance between civil society and state power.

Background: A Sector Trapped Between Two Eras

The petition was brought by three long-standing civil society leaders acting both in their personal capacity and on behalf of umbrella organizations. Their claim was simple but profound; that several provisions of the PBO Act, as operationalized, violated the Constitution.

The main areas of contestation included:

1. The mandatory re-registration of all existing NGOs;
2. The Authority’s unchecked enforcement powers;
3. Executive overreach in the composition and control of the PBO Authority and Disputes Tribunal;
4. Invasive data disclosure requirements under Section 32;
5. Compulsory membership in a single national federation;and
6. Restrictive forum recognition rules that elevated some civic voices while silencing others.

The respondents, including the Attorney General and the PBO Authority, defended the law as a necessary and rational framework for sectoral integrity. The High Court disagreed.

The Digest: A Constitutional Autopsy of the PBO Act

1. Re-registration: Bureaucracy Masquerading as Legality

The Fifth Schedule required all NGOs previously registered under the repealed NGO Coordination Act to reapply under the PBO regime. The Court held this was unconstitutional for the following reasons:

1. It violated Article 36 by placing an unreasonable burden on freedom of association through withholding or withdrawing the registration of compliant entities;
2. It breached Article 47 by extinguishing legal status without an individualized assessment or fair administrative process;
3. It fell afoul of Article 27 by singling out one category of legal entities for discriminatory treatment.

The Court affirmed that the right to legal continuity is not procedural. It is constitutional. The re-registration provision amounted to erasure without process and expectation without clarity.

2. Enforcement Powers: Authority Without Accountability

Sections 18 and 19 allow the PBO Authority to investigate, issue default notices, and unilaterally suspend or cancel a certificate. No oral hearing is required. No standards are provided. No rules of proportionality are set.

The Court found these powers to violate:

1. Article 47 — fair administrative action;
2. Article 50 — the right to a fair hearing;
3. Article 36 — protection against arbitrary dissolution of an association.

The Authority’s power to cancel registration for violations of an organization’s own internal constitution, including minor infractions such as delayed elections, was deemed vague, excessive, and punitive. The Judgment also made clear that the availability of appeal does not cure the absence of due process at first instance.

3. Structural Capture: When Independence is a Mirage

The composition of the PBO Regulatory Authority under section 35 and the PBO Disputes Tribunal under section 50, came under intense scrutiny. The Authority’s Board was found to be executive-heavy, politically influenced, and structurally dependent. The Tribunal, though styled as a quasi-judicial body, lacked insulation from the very Authority whose decisions it was expected to review.

The Judgment highlighted:

1. The lack of participation by the Judicial Service Commission in the Tribunal’s establishment;
2. Financial dependence on PBO Regulatory Authority and the Salaries and Remuneration Commission that risked institutional bias; and
3. Unconstitutional overlaps between the Authority and the Tribunal.

This arrangement, the Court held, makes impartiality not merely unlikely but legally impossible.

4. Privacy and Surveillance: Section 32 Overreaches

Section 32 required PBOs to submit detailed reports that could, among others, include financial statements, personal data of members, donors, and beneficiaries. While the objective of financial transparency was legitimate, the Court found the mechanism unconstitutional due to:

1. Lack of clarity on what data could be demanded;
2. Absence of legal and procedural safeguards;
3. Non-alignment with the Data Protection Act, 2019;
4. Non conformity with article 24 of the constitution on limitation of rights being reasonable and justifiable.

5. Compulsory Federation and Forum Recognition: Coercive Collectivism

Section 21 creates an impression of a mandatory requirement that  all PBOs are to join the Federation of Public Benefits Organizations. On the other hand, Section 23 gives the PBO Regulatory Authority sole discretion to recognize sectoral forums. The Court held these provisions violated Article 36 on both the right to associate and the right not to associate.

The effect of these provisions, the Court said, is to allow the State to control who speaks on behalf of civil societies. Thus, the gatekeeping function bestowed on the Authority was deemed inconsistent with a pluralistic, democratic society.

Implications: A Regulatory Reset with Constitutional Anchoring

The Judgment does not kill the PBO Act. It rescues it from itself. In doing so, it preserves the legitimacy of regulation while restoring the supremacy of rights.

For NGOs and Civil Society Organizations

1. No organization registered under the former NGO law is required to re-register;
2. Organizations can now challenge actions of the Authority under both administrative and constitutional grounds;
3. Civic coalitions are free to organize themselves in associations of their choosing;
4. Organizations should revise data handling protocols in line with both this judgment and the Data Protection Act.

For the State and Legislature

1. Sections 18, 19, 21, 23, 32, 35, and 50 require urgent legislative surgery;
2. Any future enforcement regime must incorporate clear standards, oral hearings, and proportionality;
3. The Tribunal and Authority must be reconstituted in line with constitutional requirements for independence and fairness; and
4. New regulations should harmonize with the Fair Administrative Action Act and the Data Protection Act.

For International Donors and Policy Partners

1. Avoid conditionalities that replicate the invalidated aspects of the PBO act;
2. Monitor implementation of this Judgment in ongoing programming and funding design.

Conclusion: Reform Without Repression

The High Court’s Judgment is a landmark, not because it invalidates a law, but because it redefines the limits of legitimate regulation. The State’s role is not to conscript civil society into obedience but to enable its diversity and autonomy within a framework of principled accountability. .

Author:

Mike Ogutu – Commercial Lawyer 

Contact us : info@wmcoadvocates.co.ke Disclaimer –This Article is in general terms for guidance only and is not intended to substitute professional advice. While due diligence has been undertaken, in ensuring the accuracy of information provided herein, Waithira M. & Co. Advocates is not responsible for any actions or omissions undertaken as a result of the same.