Mandatory re-registration for existing NGOs ruled unconstitutional

The court struck down paragraphs 5(1) and 5(2) of the Fifth Schedule of the PBO Act, which required non-governmental organisations (NGO) registered under the repealed NGO Coordination Act to reapply for registration under the PBO Act.

The court held that these provisions violated Articles 36(3)(a), 47, and 27(4) of the Constitution by unjustifiably limiting the right to freedom of association, violating principles of legitimate expectation, legal continuity, and administrative fairness.

The court has directed the Public Benefit Organisations Regulatory Authority (PBORA) to automatically transition and register all organisations that were registered before the PBO Act’s commencement on 14 May 2024.

Consequently, existing NGOs will retain their legal recognition without needing to submit to a fresh application process. This provides much-needed continuity for thousands of existing civil society organisations by sparing them from a potentially burdensome and disruptive re-registration process.

Right to a fair hearing in the suspension or cancellation of registration

The court found that sections 18(1) to 18(3) and 19(1)(b) of the PBO Act violated constitutional provisions on fair administrative action and hearing in Articles 47 and 50 of the Constitution. The court found the PBORA’s powers to suspend or cancel registration without affording the PBOs an opportunity to be heard by an independent and impartial body to be unconstitutional

Further, section 19(1)(b), which permitted cancellation for acting contrary to a PBO’s constitution, was deemed unreasonable and unjustified.

The decision emphasised that any enforcement measures must be preceded by due process and that deregistration for non-compliance with a PBO’s constitution must be material and not minor or technical.

Federation membership must be voluntary

The court held that sections 21(1) and 21(9), which mandate membership of the National Federation of Public Benefit Organisations, violated the freedom of association. The court held that while collective representation is legitimate, federation membership must remain entirely voluntary.

Consequently, the federation must remain a voluntary umbrella body, and no organisation can be penalised for choosing not to join. No PBO shall face adverse consequences or regulatory disadvantage for choosing not to join.

Recognition for PBO forums

Section 23(2) allowed the PBORA to recognise only those forums that represented a “significant number” of PBOs. The court stated that this term was vague and created an undefined threshold that risked arbitrary application.

The court found that such discretion limited freedom of association, and recognition should be based on objective and inclusive criteria that do not exclude smaller or independent forums. This judgment champions grassroots legitimacy over numerical gatekeeping and opens the door for a broader range of PBO networks.

Disclosure of personal information declared unconstitutional

Section 32 of the PBO Act was also declared unconstitutional to the extent that it required disclosure of personal information about members, donors or beneficiaries without adequate legal safeguards. The court held that while transparency is a legitimate aim, the provision lacked proportionality, clarity and compliance with the Data Protection Act of 2019.

For PBOs, this means that the information requested must be genuinely necessary for legitimate regulatory purposes and proportionate to the aim sought. Moreover, there must be adequate safeguards to protect the privacy and confidentiality of the information provided, preventing its arbitrary or unauthorised disclosure.

Composition of the board of the PBORA lacks institutional independence

The court held that the provisions which govern the appointment of the PBORA’s board contravene Articles 50(1), 160 and 172 of the Constitution.

The appointment process was found to be excessively executive-controlled and failed to guarantee the independence and impartiality necessary for a body exercising quasi-judicial authority.

This means that the PBORA must be reconstituted through a process that ensures transparency and independence to ensure legitimacy.

Safeguarding the independence of the PBO Disputes Tribunal

The court declared the provisions of the PBO Act that established the PBO Disputes Tribunal (Tribunal) unconstitutional for failing to guarantee its independence. The court held that the appointment of tribunal members by the Chief Justice without involvement of the Judicial Service Commission (JSC), and control over their remuneration by the PBORA, violated Articles 50(1), 160, 172(1)(c) and 230(4)(a).

Notably, on 17 June 2025, the National Assembly approved the appointment of the chairperson and members of the Tribunal following nominations by the Chief Justice. The Tribunal must now be reconstituted under a framework aligned with the involvement of the JSC.

Why it matters

The judgment represents a pivotal moment for PBOs in Kenya. By declaring a range of provisions in the PBO Act unconstitutional, the court has not only provided immediate relief to NGOs but also offered a clear interpretive guide to how laws regulating the PBO landscape must align with the Constitution.

The court’s constitutional reasoning also serves as the interpretive guide for the development and finalisation of the draft regulations currently undergoing public participation. As a result, the draft regulations, which we discussed in a previous alert, will require substantial revisions to the following provisions, which relied on the now-unconstitutional sections of the PBO Act.

• Regulation 10 must be amended to reflect the automatic transition of existing NGOs, not a fresh application process for the bestowment of PBO status.
• Cancellation and suspension of registration in Regulation 17, which currently mirrors provisions declared unconstitutional must be redesigned to guarantee due process and fair hearing.
• Requirements for submitting personal data must be re-evaluated to ensure compliance with privacy rights under Article 31 and the Data Protection Act.
• The draft regulations must reinforce the principle of voluntary association and eliminate the compulsion to join the National Federation of Public Benefit Organisations or exclusion of PBO forums based on undefined thresholds.

Notably, the High Court’s judgment does not affect the provisions of the PBO Act relating to tax benefits, which we have previously discussed here.