High Court invalidates key provisions of the Public Benefits Organizations Act
By Faith Cherop Advocate | Despute Resolution, ESG Matters
On 30th April 2025, Hon. Justice Bahati Mwamuye delivered judgment in High Court Constitutional Petition No. E519 of 2024: Otieno & others vs. Hon. Attorney General & another; Katiba Institute & 9 others (2025) KEHC 8557 (“the Petition”) declaring certain provisions of the Public Benefits Organizations Act, 2013 (“the PBO Act”) as unconstitutional.
The Petition challenged several provisions of the PBO Act alleging that they violate 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 impugned provisions include:
- Paragraphs 5(1) and 5(2) of the Fifth Schedule, requiring previously registered NGOs to apply afresh for registration as Public Benefits Organizations (PBOs);
- Sections 35 and 50 of the PBO Act, dealing with the composition and independence of the PBO Regulatory Authority Board and the PBO Disputes Tribunal;
- Sections 21(1), 21(9), and 23(2) of the PBO Act, which impose structural obligations on PBOs, including compulsory membership in the national federation and restrictions on recognition of forums;
- Section 32, which mandates disclosure of information by PBOs; and
- Sections 18(1)–(3) and 19(1)(b) of the PBO Act, which provide for suspension or cancellation of registration of PBOs.
The Court held that the mandatory re-registration for existing NGOs violated legitimate expectation and was discriminatory, undermining freedom of association. It ruled that previous NGOs are automatically transitioned to PBO status, nullifying the fresh re-registration requirement. Section 32 concerning disclosure of personal information was invalidated and declared unconstitutional as it unjustifiably intrudes upon the privacy of individuals involved in PBOs and, lacks safeguards for the protection of personal data. The provisions on the PBO Authority Board and the PBO Disputes Tribunal were held to be unconstitutional due to the Board’s lack of independence in exercising quasi-judicial functions, the exclusion of the Judicial Service Commission in appointment of tribunal members and, the need to include the Salaries and Remuneration Commission as the sole body constitutionally mandated to determine the remuneration of the tribunal members. Furthermore, compelling PBOs to join the National Federation of Public Benefit Organizations and vague restrictions on recognizing PBO forums were found to infringe on freedom of association and fair administrative action for failing to provide adequate due process prior to the suspension or cancellation of the PBO’s registration.
As a result and flowing from the court’s decision, organizations governed by the PBO Act can now move forward with greater clarity based on the following key outcomes:
- Automatic Transition for Existing NGOs: If your organization was previously registered under the repealed Non-Governmental Organizations Co-ordination Act, you are automatically transitioned and recognized as a PBO. You are not required to apply afresh for registration under the new PBO Act. The Public Benefit Organizations Regulatory Authority has been directed to effect this automatic transition.
- Limited Disclosure Requirements: You are not compelled to disclose personal information of your members, donors, or beneficiaries, or other private affairs under Section 32 of the PBO Act, as this provision has been declared unconstitutional for violating the right to privacy.
- Voluntary Federation Membership: Membership or affiliation with the National Federation of Public Benefit Organizations is strictly voluntary. You shall not suffer any disadvantage or sanction for choosing not to join the Federation, and any implication in the Act that compels membership is nullified. The Federation may continue to operate for those PBOs that freely elect to be members.
- Unconstitutional Regulatory Bodies and Procedures: The composition of the PBO Authority Board and the establishment and appointment of the PBO Disputes Tribunal are unconstitutional. Furthermore, the procedures for suspension or cancellation of PBO registration under Sections 18(1)-(3) and 19(1)(b) are unconstitutional to the extent they fail to provide a fair hearing prior to the suspension or cancellation of the PBO’s registration. This means organizations should expect adherence to principles of fair administrative action and fair hearing before any punitive measures are taken against their registration.
- Freedom to Form Forums: The restriction on the recognition of PBO self-regulation forums based on an undefined “significant number” is unconstitutional. This implies that PBOs have the freedom to establish and operate forums without arbitrary state interference or denial of recognition.