Update: On September 9, 2016, the Cabinet Secretary of the Ministry of Devolution signed a gazette notice to commence the Public Benefit Organisations (PBO) Act, 2013. Notably, however, the notice to commence the PBO Act has not been gazetted yet, and thus the PBO Act is not yet operational. A case has been filed in court seeking to stop the Attorney General from gazetting the commencement date of the PBO Act. The court’s judgement on an earlier petition relating to the commencement of the Act will be delivered on October 31, 2016.
The PBO Act was created through a multi-year, multistakeholder process and grants PBO status to all membership and non-membership organizations carrying out "public benefit activities." It also provides benefits such as tax incentives to those organizations. The Act was passed by the legislature and assented to by the President on January 14, 2013, but the Ministry of Devolution had declined to commence the Act, while several restrictive amendments to the Act were proposed. However, widespread civil society advocacy succeeded in defeating those amendments. As the new legal framework is operationalized, new regulations will need to be drafted and new institutions, such as the PBO Regulatory Authority and the National Federation of PBOs, will need to be created. To facilitate ongoing dialogue between civil society and government officials throughout this process the Cabinet Secretary of the Ministry of Devolution called for quarterly CSO-Ministerial roundtables.
The Access to Information Bill, 2015 was passed in August 2016. It affirms a legally enforceable right for every citizen to access all information held by public entities and private bodies and clear and simple procedures for accessing information. It still awaits presidential signature in order to become law.
Traditionally, Kenyans lived in communities characterized by strong patterns of social ties and relations. People came together to promote mutual interests, pool resources, express ideas and participate in the governance of their communities as the communal structures afforded them the vehicles to do so. These structures included ethnic and kinship groups, such as families, clans and lineages, as well as councils of elders and age groups.
Associational life is still deeply rooted in Kenya. It forms the basis on which Harambee (self-help) initiatives thrive. The term civil society, however, is relatively recent and is often associated with quests for social transformation and the realization of social justice. From the early 1920s until 1963, civil society organizations  (NGOs) played a prominent role in the struggle for independence. From the time of independence until the late 1970s, many NGOs worked closely with the government to complement its service delivery efforts. However, the 1980s and 1990s were characterized by new dynamics: as western donors made economic support to the Government conditional on good governance and democratization, NGOs began to demand a multi-party system. NGOs also became more vocal on national political issues such as constitutional reform and good governance. Indeed, NGOs contributed immensely towards the transition (in 2002) from authoritarian to democratic rule through their efforts to advance political rights and freedoms as well to broaden the democratic process.
The new political dispensation in 2003 brought about an observed improvement in government/NGO relations as meaningful dialogue and increased engagement between the two sectors began to take place. The former and current Governments have encouraged NGOs and other stakeholders to partner with them, especially in addressing the complex issues facing the country. However, NGOs are aware that they need to address issues of competence, sustainability, and credibility within their own sector more earnestly if they are to play their role and engage with other partners effectively. There are some efforts being made in this regard.
Many of Kenya’s laws are statutory in nature and generally codify England’s common law rules. In addition, Kenyan legislation regulates organizations substantially through enforcement of the organization's founding documents. Generally, the legal environment in which NGOs operate is supportive of civil society. However, the legal framework is characterized by multiple laws, which are implemented by different government ministries, agencies and departments. The diverse and sometimes overlapping laws present difficulties for the government in developing harmonized, systematic and coordinated plans and approaches to civil society. To compound the problem, the NGO regulatory agencies are under-resourced and find it difficult to manage their basic functions effectively. For example, although the NGO Coordination Board (the government body that regulates NGOs) can issue directives on the need for NGOs to file their annual returns, it lacks the capacity to carry out inspections and ensure that NGOs adhere to these directives.
NGOs anticipate that the Public Benefit Organisations (PBO) Act, 2013 will address some of the challenges that the sector faces under the law that it supersedes, the Non-Governmental Organizations Coordination Act, 1990. Unfortunately, however, the PBO Act has yet to be implemented. The parliament was expected to deliberate on proposals contained in a Bill that aimed to amend the PBO Act, 2013, but civil society successfully thwarted these plans through spirited campaigns. As of early 2016, NGOs were still pressuring the government to commence the implementation of the PBO Act, 2013.
 The term Civil Society Organizations (CSOs) is used generally in Kenya to refer to the wide array of organizations that operate in the realm between the individual and the state and are formed to promote the interests of their members or the public good. The term “NGO” is used specifically to refer to entities that are registered by the NGO Coordination Bureau. Though NGOs are just a small part of the larger NGO sector, they are the most visible. Under the NGO Coordination Act of 1990, NGOs can be established for the benefit of the public at large and for the promotion of social welfare, development, charity or research in the areas inclusive of, but not restricted to, health, relief, agriculture, education, industry, and the supply of amenities and services.
|Organizational Forms||Non-Governmental Organizations||Societies|
|Registration Body||NGO Coordination Board||Registrar of Societies|
|Barriers to Entry||(1) Vague grounds for denial of registration;
(2) Government discretion in setting terms and conditions on NGO registration;
(3) No fixed time period for registration review.
|(1) Vague grounds for denial of registration;
(2) Mandatory registration (unregistered societies illegal).
|Barriers to Activities||NGOs must reach agreement with the NGO Coordination Board on a variety of issues before commencing activities.||(1) Registrar of Societies has wide discretion relating to the investigation, arrest, and search of any society;
(2) The failure to maintain a register of members or annual accounts may expose a society to heavy penalties, including imprisonment;
(3) Where it is alleged that a society is unlawful, the burden of proof is on the society.
|Barriers to Speech and/or Advocacy||No legal barriers||No legal barriers|
|Barriers to International Contact||No NGO can become a branch or affiliate of foreign organizations of policial nature, except with prior consent of the NGO Coordination Board.||No legal barriers|
|Barriers to Resources||No legal barriers||No legal barriers|
|Barriers to Assembly||No time limit specified for the authorities to respond to organizers' notification requests or right of appeal; counter-demonstrations prohibited; excessive force used by security officers.||No time limit specified for the authorities to respond to organizers' notification requests or right of appeal; counter-demonstrations prohibited; excessive force used by security officers.|
|Population||45,010,056 (July 2014 est.)|
|Type of Government||Republic|
|Life Expectancy at Birth||Male: 62.06 years
Female: 65.01 years (2014 est.)
|Literacy Rate||Male: 90.6%
Female: 84.2% (2010 est.)
|Religious Groups||Protestant: 47.7%; Roman Catholic: 23.5%; Muslim: 10%; indigenous beliefs: 10%; other: 2%|
|Ethnic Groups||Kikuyu: 22%; Luhya: 14%; Luo: 13%; Kalenjin: 12%; Kamba: 11%; Kisii: 6%; Meru: 6%; other African: 15%; non-African (Asian, European, and Arab): 1%|
|GDP per capita||$1,800 (2013 est.)|
Source: The World Factbook. Washington, DC: Central Intelligence Agency, 2009.
|Ranking Body||Rank||Ranking Scale
(best – worst possible)
|UN Human Development Index||145 (2015)||1 – 182|
|World Bank Rule of Law Index||37.6 (2014)||100 – 0|
|World Bank Voice & Accountability Index||42.4 (2014)||100 – 0|
|Transparency International||139 (2015)||1 – 177|
|Freedom House: Freedom in the World||Status: Partly Free (2016)
Political Rights: 4
Civil Liberties: 4
|Free/Partly Free/Not Free
1 – 7
1 – 7
|Foreign Policy: Fragile States Index
||20 (2016)||178 – 1|
International and Regional Human Rights Agreements
|Key International Agreements||Ratification*||Year|
|International Covenant on Civil and Political Rights (ICCPR)||Yes||1972|
|Optional Protocol to ICCPR (ICCPR-OP1)||No||--|
|International Covenant on Economic, Social, and Cultural Rights (ICESCR)||Yes||1972|
|Optional Protocol to ICESCR (OP-ICESCR)||No||--|
|International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)||Yes||2001|
|Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)||Yes||1984|
|Optional Protocol to the Convention on the Elimination of Discrimination Against Women||No||--|
|Convention on the Rights of the Child (CRC)||Yes||1990|
|International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)||No||--|
|Convention on the Rights of Persons with Disabilities (CRPD)||Yes||2008|
|African Charter on Human and Peoples' Rights||Yes||1992|
|African Charter on the Rights and Welfare of the Child||Yes||2000|
|Treaty Establishing the African Economic Community||Yes||2001|
|Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa||Yes||2006|
|Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights||Yes||2004|
* Category includes ratification, accession, or succession to the treaty
On August 4, 2010, at a national referendum, Kenyans voted in favor of a new constitution. The constitution review process, which preceded the referendum, has been touted as the most participatory constitution review process worldwide, as it was consultative from the start and largely integrated the views of the public in the final document. The new constitution promises far-reaching and comprehensive reforms in the governance of the country.
Relevant provisions include:
Implementation of rights and fundamental freedoms
21. (1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.
Freedom Of Expression
33. (1) Every person has the right to freedom of expression, which includes—
- freedom to seek, receive or impart information or ideas;
- freedom of artistic creativity; and
- academic freedom and freedom of scientific research.
(2) The right to freedom of expression does not extend to—
- propaganda for war;
- incitement to violence;
- hate speech; or
- advocacy of hatred that—
- constitutes ethnic incitement, vilification of others or incitement to cause harm; or
- is based on any ground of discrimination specified or contemplated in Article 27 (4).
(3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.
Access To Information
35. (1) Every citizen has the right of access to—
- information held by the State; and
- information held by another person and required for the exercise or protection of any right or fundamental freedom.
(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
(3) The State shall publish and publicise any important information affecting the nation.
Freedom Of Association
36. (1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2) A person shall not be compelled to join an association of any kind.
(3) Any legislation that requires registration of an association of any kind shall provide that—
- registration may not be withheld or withdrawn unreasonably; and
- there shall be a right to have a fair hearing before a registration is cancelled.
Assembly, demonstration, picketing and petition
37. Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
Right to Language and culture
44. (1) Every person has the right to use the language, and to participate in the cultural life, of the person’s choice.
Court Cases on Public Participation
Kenyan courts have decided several cases interpreting the new Constitution on issues related to the freedom of association and public participation, including one case in the context of trade unions. In the National Gender and Equality Commission V Independent Electoral and Boundaries Commission (IEBC) & Another  eKLR, the court found that the IEBC did not develop sufficient guidelines or take specific steps aimed at increasing or promoting the participation of vulnerable groups within the electoral process other than passively inspecting the party lists submitted to it.
In another case, Law Society of Kenya V Attorney General & 2 Others,  eKLR, the courts sought to determine whether there was public participation as enshrined in the Constitution. The Law Society of Kenya argued that the Statute Law (Miscellaneous Amendment) Act, 2012 was enacted without public participation required by the national values and principles of governance set out in Article 10 in the Constitution. They urged the court to annul the law in the event it found that there was no public participation noting that in view of the magnitude of the amendments, there ought to have been public consultation. The court found that the petitioner did not show or demonstrate that there was no public participation in the whole process.
Similarly, in Commission for the Implementation of the Constitution v Parliament of Kenya & another & 2 others & 2 others,  eKLR, Katiba Institute (a not-for-profit organization) submitted that the Leadership and Integrity Act was invalid insofar as it ignored views of Kenyans on effective enforcement, hence defeating the essence of public participation. However, the Court did not hold that the Act is unconstitutional for want of public participation because the petitioners did not address the standard to assess the level of public participation in the legislative process.
In addition, in Moses Munyendo & 908 others v Attorney General & another,  eKLR, the court considered whether the Crops Act, 2012 and the Agriculture, Fisheries and Food Authority Act, 2012 (“the AFFA”) which were passed into law and assented to by the President on January 14, 2013, were unconstitutional on the grounds that they were enacted without public participation. However, the court held that the petitioners did not discharge their burden of showing that the statutes were enacted without public participation.
Finally, in Nairobi Metropolitan PSV SaccosUnion Limited & 25 others v County Of Nairobi Government & 3 others,  eKLR, the petitioners sought a declaration that paragraph 6.1 of the Schedule to the Nairobi County Finance Act, 2013, which authorized the Nairobi City County to change the motor-vehicle parking levies, is unconstitutional, to the extent that there was no public participation in the process of the making, and enactment of the Act. The court held and found that there was adequate and appropriate public participation prior to the enactment of paragraph 6.1 in the schedule to the Nairobi City County Finance Act, 2013.
National Laws and Regulations Affecting Sector
Relevant regional and national-level laws and regulations affecting civil society include (see also Kenya Gazette):
- The Non-Governmental Organizations Coordination Act, Act No. 19 
- The Non-Governmental Organizations Coordination Regulations 
- Non-Governmental Organizations Coordination (Amendment) Regulations 
- The Non-Governmental Organizations Council Code of Conduct 
- The Companies Act, Chapter 486 of the Laws of Kenya 
- The Societies Act, Chapter 108 of the Laws of Kenya 
- The Trustees (Perpetual Succession) Act, Chapter 164 of the Laws of Kenya 
- The Trustee Act, Chapter 167 of the Laws of Kenya 
- The Income Tax Act, Chapter 470 of the Laws of Kenya 
- East Africa Community Customs Management Act 
- Income Tax (Charitable Donations Regulations) 
- Sessional Paper No. 1 
- The East Africa Community Treaty 
- The East Africa Community Customs Management Act 
- The Public Benefit Organisations Act  (soon operational)
Pending NGO Legislative / Regulatory Initiatives
1. PBO Act Regulatory Framework and Institutional Mechanisms
On September 9, 2016, the Cabinet Secretary of the Ministry of Devolution signed a gazette notice to commence the Public Benefit Organisations (PBO) Act, 2013. Notably, however, the notice to commence the PBO Act has not been gazetted yet, and thus the PBO Act is not yet operational. A case has been filed in court seeking to stop the Attorney General from gazetting the commencement date of the PBO Act. The court's judgement on an earlier petition relating to the commencement of the Act will be delivered on October 31, 2016.
If commenced, a range of stakeholders will need to work together to ensure effective implementation of the PBO Act provisions. This will include, among other things, setting up the regulatory and institutional frameworks and mechanisms envisioned under the Act. The Ministry of Devolution, in consultation with stakeholders will need to craft rules and regulations to support the implementation of the Act. In addition, PBOs and the Government will need to set up the institutions and mechanisms to support regulation and self-regulation under the Act, such as the Board of the PBOs Regulatory Authority, the National Federation of PBOs, and the PBO self-regulation forums.
2. The PBO (Amendment) Bill, 2016
CSOs, with the support of the MP for Ndhiwa Constituency, Hon. Agostinho Neto (who is also the convenor of the Kenya Parliamentary Human Rights Association (KEPHRA) ), tabled a bill in Parliament – the PBO (Amendment) Bill, 2016 – seeking to commence the PBO Act. The Bill sought to amend the clause in the PBO Act that gives the Cabinet Secretary of the Ministry of Devolution and National Development, the discretion to decide when the PBO Act 2013, shall commence. The Bill went through the first and second reading on April 27, 2016 and August 11, 2016, respectively. Members of the public submitted their views on the bill in line with their right to participate in policy making. It is likely that this Bill will soon be withdrawn now that the PBO Act has been operationalized.
3. Public Interest Litigation: Petition on Commencement of the PBO Act
The High Court is set to deliver a ruling in September 2016 on a petition seeking to compel the Cabinet Secretary of the Ministry of Devolution and National Development to commence the implementation of the PBO Act. While the PBO Act is now operational, the ruling may make pronouncements on other related but important issues in the petition,.
4. Initiative to Strengthen Government and CSO Collaboration:
The Cabinet Secretary of the Ministry for Devolution and National Planning has proposed to hold regular Ministerial Roundtable for CSOs as well as a National Conference as a means to seek views from civil society and to strengthen collaboration. The mechanisms for this collaboration are to be set up in late 2016.
5. Religious Societies Rules
Religious organizations are grappling with their share of challenges. In January 2016, the Attorney General (AG) proposed and published Religious Societies Rules aimed at regulating religious organizations. According to the AG, the rules sought to address public concerns regarding the abuse of some religious organizations for purposes of swindling the public, engaging in money laundering, promoting radicalization, and creating a public nuisance. The rules require each religious society to belong to umbrella organizations in order to promote self-regulation; require their leaders to possess a certified copy of a theological certificate; and require each religious society to declare all assets and liabilities and submit annual returns. Religious leaders strongly opposed the rules, noting the government’s failure to conduct proper consultations before publishing them. Thereafter, the President met with religious leaders and announced that the government had withdrawn the rules. He directed the AG to subject the draft rules to comprehensive public consultations with all stakeholders.
6. Access to Information Bill, 2015
The Access to Information Bill, 2015 was passed in August 2016. It affirms a legally enforceable right for every citizen to access all information held by public entities and private bodies and clear and simple procedures for assessing information. It still awaits a presidential signature to enable its assent into law.
NGOs in Kenya may assume one of six available organizational forms:
(1) Non-Governmental Organizations (NGOs) are registered by the NGO Coordination Board and governed by the NGO Coordination Act of 1990 (Act No. 19, Laws of Kenya) and its Regulations of 1992. The Act will be effectively replaced by the Public Benefit Organisations (PBO) Act, 2013, as soon as the Cabinet Secretary for Devolution officially announces the PBO Act's commencement date. All NGOs that were registered under the NGO Coordination Act will be deemed to be registered as Public Benefit Organisations (PBOs) on the commencement date. The PBO Act, under section 2, defines “Public Benefit Organisation” as a voluntary membership or non membership grouping of individuals or organisations, which is autonomous, non-partisan, non-profit making and which is:
– Organised and operated locally, nationally or internationally;
– Engages in defined public benefit activities; and
– Registered by the Authority.
“Public Benefit Activity” is defined under section 2 as “an activity that supports or promotes public benefit by enhancing or promoting the economic, environmental, social or cultural development or protecting the environment or lobbying or advocating on issues of general public interest or the interest or well-being of the general public or a category of individuals or organisations.
(2) Companies limited by guarantee and not having share capital are registered by the Registrar of Companies under the Companies Act (Chapter 486, Laws of Kenya). They can exist to promote any legal purpose as long as these are contained in the memorandum of incorporation and articles of incorporation. As but one example, many service delivery institutions – such as schools and healthcare organizations – are registered as companies limited by guarantee and having no share capital.
(3) Trusts are established by families, groups or individuals to hold and manage assets for the benefit of others. Trusts may be incorporated under the Trustees (Perpetual Succession) Act (Chapter 164, Laws of Kenya) for religious, educational, literary, scientific, social, athletic, or charitable purposes (Trustees (Perpetual Succession) Act, Section 3(1)).
(4) Under the Societies Act, a society is "any club, company, partnership or other association of ten or more persons, whatever its nature or object, established in Kenya or having its headquarters or chief place of business in Kenya" (Societies Act, Section 2). The definition specifically excludes trade unions, cooperatives, corporations, and certain other entities. Societies are registered and regulated by the Registrar of Societies (Societies Act, Section 8). After grassroots organizations, societies are the second largest category of NGO: there are over 70,000 societies registered in Kenya.
(5) Cooperative societies and unions are registered at the Department of Cooperatives under the Cooperative Societies Act (Amended) 2004, No. 12 of 1997. They include consumer, producer and marketing cooperative societies in rural and urban areas and housing development societies found in major urban areas. They are voluntary membership organiations and advance the welfare, economic interests and goals of their members.
(6) Grassroots organizations include harambee or self-help groups and community-based organizations (CBOs) such as neighborhood associations. Self-help groups and CBOs are formally recognized through registration under the Department of Social Services in the Ministry of Gender and Children Affairs. As the largest group in the NGO sector, they operate primarily at the village and community level.
Public Benefit Status
Under section 7 of the PBO Act, the Public Benefit Organizations Regulatory Authority (the government agency that will register PBOs) has the authority to bestow public benefit organization status on organizations that are registered as PBOs, and those that are registered under other laws.
Currently registered NGOs are recognized under the NGO Coordination Act as being “established for the benefit of the public at large and for the promotion of social welfare, development, charity or research in the areas inclusive of, but not restricted to, health, relief, agriculture, education, industry, and the supply of amenities and services.”
The other NGO forms are not restricted to public benefit purposes:
- Trusts may be established to promote religious, educational, literary, scientific, social or charitable, or athletic purposes.
- Societies may be established for any purpose or object.
- Cooperative societies and unions can be created for the promotion of the welfare and economic interests of their members.
For more information on the PBO Act, please see the US International Grantmaking Note on Kenya.
Barriers to Entry
Under the NGO Coordination Act (to be repealed by the PBO Act), ambiguous provisions were sometimes used to curtail transparency and hinder registration of certain NGOs. For example, the NGO Coordination Board could refuse registration of an NGO applicant if it was satisfied that its proposed activities or procedures were not “in the national interest”; or if it was satisfied, on the recommendation of the NGO Council,  that the applicant should not be registered. While the Board may sometimes furnish the applicant with an explanation for the refusal of registration, the Board was not legally required to do so. In practice, denial on the broad ground of the “national interest” has been used unjustifiably to curtail the rights of NGOs. . However, Sections 6- 13 of the new PBO Act provide clear, straightforward criteria for registration of PBOs and a clear, explicit timeline for processing an application for registration.
The following is a range of potential legal barriers to formation, establishment and registration of NGOs under the NGO Coordination Act and the Societies Act:
First, the Government may deny registration of societies on vague and ambiguous grounds, which invite arbitrary and subjective decision-making. Similarly, the Registrar of Societies has wide discretion to refuse to register a society if he has “reasonable cause to believe” that the society has among its objects, or is likely to pursue or be used for, any unlawful purpose or any purpose prejudicial to or incompatible with the peace, welfare or good order in Kenya, or that the interests of peace, welfare or good order in Kenya would otherwise be likely to suffer prejudice by registration of the society. The Registrar may also refuse to register a society where he is satisfied that such society is a branch of, or is affiliated to or connected with, any organization or association of a political nature established outside Kenya. Additional reasons for denial apply where the terms of the constitution or rules of the society or the name of the society is in any respect repugnant to or inconsistent with any law or is otherwise undesirable.
Second, the NGO Coordination Act is vague and ambiguous on a number of issues where wide discretion is given to the NGO Board and the Minister. For example, the certificate of registration for NGOs may contain such terms and conditions as the NGO Coordination Board may prescribe.  There are no guidelines, however, to ensure that the Board uses this prescriptive power in a clear, objective and predictable manner.
Third, the NGO Coordination Act does not explicitly provide a fixed time period within which the NGO Coordination Board must act on NGO registration applications. In practice, however, applications for NGO registration are often processed within about 90 days.
Finally, NGOs and societies are subject to mandatory registration, at least according to the law as written, although this has not proved problematic in practice. Under the NGO Coordination Act, for example, it is illegal for any person to operate an NGO in Kenya without registration and a certificate under the NGO Coordination Act. In practice, however, many NGOs that fall within the definition of NGO have opted to register under alternative legal forms. The Societies Act provides that every society which is not a registered society or an exempted society is an unlawful society. Hence, where ten or more persons get together, they are expected, according to the law, to have that group registered. There are stiff penalties for operating as a society without a registration certificate. This legal provision is, however, rarely enforced.
 The NGO Council is a national umbrella body for NGOs. Once NGOs are registered by the NGO Coordination Board, they are required to apply for membership in the Council. The Council is supposed to represent the interests of its members, but is currently inactive.
 Kameri-Mbote, Patricia, Dr. (2000) ‘The Operational Environment and Constraints for NGOs in Kenya’ IELRC Working Paper, www.ielrc.org.
 Section 12(4) NGO Coordination Act
Barriers to Operational Activity
The new PBO Act in section 4 makes the Government responsible for providing an enabling environment for PBOs to operate. This is in line with the Government's obligations under international law to respect the freedoms of association and assembly. PBOs have a duty to furnish the Regulatory Authority with their annual report of activities and audited financial returns, six months after the end of every financial year (Section 31). The Authority may institute inquiries to determine if the activities of a PBO do not comply with the PBO Act or any other law (section 42(1)(h)). The powers of the Authority to cancel or suspend registration of a PBO are limited to specific instances and to be exercised in line with clear procedures, aimed at safeguarding PBOs (section 18 and 19).
The Societies Act includes a number of potentially troubling legal barriers affecting societies:
- The Act gives wide discretion to the Registrar of Societies and sweeping powers to various government officials with respect to investigating, arresting, entering and searching the premises of any society.
- The Act makes it an offence for a society to fail to keep a register of its members, their names, and the date of admission and exit. Where societies fail to comply with requirements to provide membership lists, annual accounts or other information, they are liable to heavy penalties, including fines and imprisonment.
- Where it is alleged that a society is an unlawful society, the burden of proving that it is a registered or exempted society or that it is not a society shall lie with the person charged.
In practice, however, these powers are rarely exercised. Societies generally operate under minimum supervision. Only occasionally, where a group is suspected to be conducting illegal activities, have the provisions in this Act been put into effect.
Barriers to Speech / Advocacy
Generally, there are no legal barriers for NGOs to speak out or engage in advocacy efforts on any issues of public importance. The PBO Act (sections 66 and 67) provides that PBOs may engage freely in research, education, publication, public policy and advocacy.
Barriers to International Contact
The NGO Coordination Act Regulations provide that no NGO can become a branch of or affiliated to or connected with any organization or group of a political nature established outside Kenya, except with the prior consent in writing of the NGO Coordination Board, obtained upon written application addressed to the Director and signed by three officers of the NGO. Where an NGO fails to do so, it is guilty of an offence. This provision may be interpreted narrowly and hence serve as a barrier to communication and cooperation.
Barriers to Resources
Generally, Kenyan law provides a conducive framework for NGOs to seek and secure funding. For example:
- NGOs are permitted to engage in economic activities provided that the profits are used to further the NGO’s purposes and that the activities are directly related to the NGO’s purposes or carried out on behalf of its beneficiaries. NGOs can conduct the business activities either directly or through for-profit subsidiaries.
- The PBO Act (section 65) provides that PBOs may engage in lawful economic activities provided the income is used solely to support the PBOs public benefit purposes.
- Local resource mobilization through harambees (public fund-raisers) is recognized, as long as it adheres to the guidelines in the Public Collections Act, which is generally enabling.
- There are no special rules relating to the receipt of foreign funds by NGOs.
- NGOs are permitted to compete for government funds in free and open competitions where specific guidelines have been established. (There are, however, very few instances where NGOs receive funding from the Government.)
Nonetheless, in 2015, the government pressured or ceased funding of NGOs that are allegedly associated with Al-Shabaab. For example, three NGOs were banned and accused of operating outside the law and financing terrorism in May 2015: Muslim for Human Rights (Muhuri), Haki Africa and the Agency for Peace. However, civil society and foreign governments have questioned whether such allegations against these NGOs are justified and protested Kenya's actions to ban these NGOs.
Barriers to Assembly
The freedom of assembly is protected in Kenya’s Constitution, in Article 37: “Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.” The Public Order Act regulates the organizations and staging of public gatherings and demonstrations.
Advance Notification. Under Sections 5(1) and 5(2) of the Public Order Act, notification of the intent to hold public meetings and public processions is mandatory. The threshold that triggers the notification requirement is when 10 people are present at an assembly. Section 5(2) of the Public Order Act states that, “Any person intending to convene a public meeting or a public procession shall notify the regulating officer of such intent at least three days but not more than fourteen days before the proposed date of the public meeting or procession.” At least two practical concerns arise:
- There is no time limit specified for the regulatory authority to respond to the notification; it is only assumed that the regulatory authority must respond before the date of the proposed assembly.
- There are no statutory provisions about the right to appeal a negative decision from the regulatory authority. However, case law and specific legal provisions within constitutional and public administrative law allow challenges to oppressive and unreasonable government action. Despite this, practically speaking, it may not be possible to challenge and reverse the decision of a refusal from the regulatory authority in sufficient time for the meeting to take place, especially where the notice is submitted close to the day of the meeting.
Spontaneous Assemblies. Due to the notification requirement, spontaneous demonstrations are not allowed. According to Section 5(1) of the Public Order Act, “No person shall hold a public meeting or a public procession except in accordance with the provisions of this section.” According to Section 5(1) anyone who participates in an “unlawful assembly” is liable to imprisonment for up to one year.
Time, Place, Manner, and Other Restrictions. According to Section 5(3), subsection (2)(b) of the Public Order Act, the notification about holding an assembly must specify “the proposed date of the meeting or procession and the time thereof, which shall be between 6:00 a.m. and 6:00 p.m.” Thus, there are time restrictions for holding an assembly.
Simultaneous Assemblies. Sections 5(2) and 5(4) of the Public Order Act also do not allow more than one demonstration on the same day, at the same time or at the same venue/route. This in effect prohibits counter–demonstrations. The regulating officer will, however, allow another demonstration on a different date, or time and route.
Enforcement. Since 2011, there have been a number of demonstrations involving clashes between demonstrators and police and military personnel. The police have been accused of using excessive power to intimidate Kenyans who protest. This been affirmed by videos of police abusing protestors, particularly vulnerable groups, such as internally displaced persons (IDPs).
|UN Universal Periodic Review Reports||Kenya, Universal Periodic Review 2010|
|Reports of UN Special Rapporteurs||Kenya|
|USIG (United States International Grantmaking) Country Notes|
|U.S. State Department||2014 Country Reports|
|Failed States Index Reports||Foreign Policy: Fragile States Index|
|IMF Country Reports||Kenya and the IMF|
|International Commission of Jurists||Not available|
|International Center for Not-for-Profit Law Online Library||Kenya|
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Kiunjuri operationalises 2013 Public Benefit Organisations Act (September 2016)
Devolution and Planning Cabinet Secretary Mwangi Kiunjuri operationalised the 2013 Public Benefit Organisations Act in a gazette notice. The Act has been hailed as a progressive law and beneficial to the sector. The act allows for a single framework for all public benefit organisations and raises accountability standards in the sector and provides greater legal certainty for stakeholders.
Parliament passes Access to Information law (August 2016)
ARTICLE 19 welcomes the recent passage of the Access to Information Bill 2015 by the National Assembly and the Senate, and calls on the President to append his signature to enable its assent into law. The Bill positively enshrines a number of progressive freedom of information principles, as it affirms a legally enforceable right for every citizen to access all information held by public entities and private bodies; clear and simple procedures for assessing information; the creation of comprehensive proactive disclosure regime; and provision for exempt information subject to international standards.
Women MPs vow to fight gender Bill collapse in court (April 2016)
Parliament risks being dissolved after failing to pass a constitutional Bill to implement the two-thirds gender rule. Women MPs have vowed to move to the court to seek direction following the collapse of the two-thirds gender principle. The female lawmakers promised to fight to ensure realisation of the constitutional requirement that not more than two thirds of either gender should be represented in elective and appointive positions.
Kenyan Assembly Approves Access to Information Bill (April 2016)
Kenya's National Assembly on April 28 approved an Access to Information Bill on third reading. There is ongoing deliberation by a legal committee on whether it should be forwarded to the Senate for consideration or move directly to the president for assent, according to a close observer of the situation. The Bill gives the government the power to reject any information that will “cause substantial harm to the ability of the government to manage the economy of Kenya” or that which involves “unwarranted invasion of the privacy of an individual… or infringe on commercial interests….”
NGOs board bankrupt, Parliament told (April 2016)
The Non-Governmental Organisations Coordination Board is bankrupt, Auditor General Edward Ouko has said. In a report tabled in the National Assembly by the Leader of Majority Aden Duale, Ouko said the Board is technically insolvent and its existence will only be dependent upon the support of the government and its creditors.
Fresh bid to amend Kenya's NGO law opposed by civil society (September 2015)
Civil society have criticized fresh attempts to amend the law that was passed more than two years ago to regulate NGOs but has never been implemented. They want Devolution Cabinet Secretary Anne Waiguru to drop her bid to amend the Public Benefits Organisations Act, which they consider a move to curb the operations of civil society in the country. Waiguru's Ministry has indicated that it has forwarded proposed amendments to parliament but it is not yet clear what those amendments are. But previous attempts to amend the law sought to restrict external funding for civil society. This will be sixth attempt by the government to amend the law.
Embassy rejects plea on funding NGO (May 2015)
The UK has turned down a request by Kenya that it stops funding Haki Afrika, a Mombasa-based NGO that the government has linked to terrorism. The Foreign Affairs Ministry had on May 12 written protest letters to the US, UK and Norwegian governments asking them to stop funding the organisation whose bank accounts were frozen in the wake of the attack on the Garissa University College in April 2015.
NGOs lose licences over terrorism claim (May 2015)
Three NGOs have been banned in the ongoing clampdown on CSOs accused of operating outside the law and financing terrorism. Muslim for Human Rights (Muhuri), Haki Africa and the Agency for Peace and Development have been deregistered and barred from operating in the country after the sector regulator, the NGO Coordination Board, cancelled their licences. The three were among organisations gazetted by the Inspector General of Police on suspicion of supporting Al-Shabaab activities. The decision to publish their names was taken after the April 2 terrorist attack on the Garissa University College in which 148 people were killed.
Ban NGOs linked to gay rights, says team (May 2015)
A taskforce set up to gather views on suggested amendments to a law governing NGOs could stir further controversy after it recommended a ban on those that advance gay rights. The 11-member team led by nominated MP Sophia Abdi handed in its report to Devolution Cabinet Secretary Anne Waiguru. In its proposals, the team suggested that a law be passed to ban organisations involved in indecency, espionage or terrorism.
NGOs in Kenya urge taskforce not to alter law (March 2015)
Proposed changes to the Public Benefits Organisations (PBO) Act will open up more avenues for corruption and political interference, civil society leaders warned in a petition to a government-led taskforce at a recent meeting in Nairobi. More than 40 NGOs presenting their petitions to the PBO Taskforce, which for the past three months has collected views across the country, unanimously called on the Kenyan government to implement the Act without any changes. The NGOs told the taskforce that the proposed changes would create unnecessary mistrust between them and government.
15 NGOs Deregistered On Suspicion of Funding Terrorism (December 2014)
Fifteen NGOs have been de-registered, their bank accounts frozen, assets repossessed and their names forwarded to the Anti-Terror Police and Interpol for investigation on suspicion of funding terror activities in Kenya and the Horn of Africa. Making the announcement, NGO Coordination Board chairman Fazul Mahamed Yusuf said, "Noting that NGOs are vulnerable to abuse as conduits of terrorism financing and money laundering, the Board has put measures in place to curb such occurrences." Yusuf at the same time announced the de-registration of a further 510 NGOs for non-compliance in accordance to regulation 24 of the NGOs Coordination Regulation Act of 1992.
Bill on NGO funding proposes a return to days of intolerance (November 2014)
President Kenyatta's threat to NGOs is disturbing. His speech was reminiscent of former President Daniel arap Moi's numerous attacks on civil society. If the President makes good his threat to "defund" civil society groups, (never mind that these groups do not receive any money from the Kenyan taxpayer), then Kenya will have regressed 20 years overnight.
Democracy and development under siege in Kenya (November 2014)
Currently, the Ministry of Devolution and Planning has constituted a task force to seek views and comments from stakeholders, including the general public, on the proposed amendments to the yet-to-be operationalized Public Benefits Organisations (PBA) Act. These amendments seek to curtail the power and influence of non-governmental organisations (NGOs) by restricting foreign funding. However, this task force's initiatives are largely seen as a public relation exercise because the government seems to have already taken a stand on the debate to introduce the amendments in Parliament. Political leaders allied to the ruling Jubilee coalition have consistently accused NGOs of serving foreign interests and using foreign funds to undermine the sovereignty and security of Kenya. However, no evidence has been provided to substantiate such accusations.
100,000 jobs at risk over law on NGO financing (November 2014)
New legislation to reduce foreign funding for NGOs could result in the loss of over 100,000 jobs. A proposed amendment to the Public Benefits Organisations Act of 2013 would cap foreign funding for NGOs at 15 percent of their total budgets. However, virtually all of Kenya's 8,500 NGOs rely on donor aid to fund their operations. "In areas such as the former North Eastern Province and other arid areas, 80 percent of health programs are supported by NGOs. Why would you want to kill such initiatives?" asked NGO Council chairman Ken Wafula.
Fresh Onslaught on Foreign Funding and Civic Space (October 2014)
Civil society groups are crying foul at what they see as a fresh onslaught from the Jubilee Government to check their activities after unsuccessful attempts last year to limit foreign funding. Some activists point to the ongoing Kenyan cases at the International Criminal Court (ICC) as the main reason for the renewed efforts to shrink the political and legal space in which they operate. Mr Christopher Gitari of the International Centre for Transitional Justice said that "any efforts to hold meetings with victims of the 2007/2008 post-election violence are usually closely monitored by police and intelligence officers and sometimes disrupted." In addition, a fresh amendment to the PBO Act sponsored by Gatundu South MP Moses Kuria is now in the works. The amendments, if adopted, will limit foreign funding of NGOs to 15 percent.
Kenyan President uses UK human rights plans to defend war crimes charges (October 2014)
There is a new example of the effect that political trash-talking about the ECHR can have. Kenyan President Uhuru Kenyatta is facing war crimes charges in the Hague relating to ethnic violence which erupted after the 2007 elections leaving 1,200 dead and 600,000 displaced. Kenyatta has recently stepped down in order to face the charges. He made a speech to the Kenyan Parliament on October 6 strongly asserting Kenya's "sovereignty", and in doing so he said, "The push to defend sovereignty is not unique to Kenya or Africa. Very recently, the Prime Minister of the United Kingdom committed to reasserting the sovereign primacy of his parliament over the decision of the European Human Rights Court."
Civil Society States Position on Miscellaneous Amendments Bill 2014 (July 2014)
We, the over 200 Civil Society Organizations (CSOs) and stakeholders drawn from all the 47 counties in the Republic of Kenya meeting in Nairobi on July 14 – 15, 2014 to discuss the state and future of the civil society in Kenya, wish to register our pleasure with a number of the proposed amendments to the Public Benefit Organizations (PBO) Act and note that this is a step towards enhancing the spirit of the Act, in line with the Government's promise to support the civil society sector and promote Kenya's political and socio-economic development. While we are pleased with some of the amendments, there is still concern that some of the proposed amendments are stifling and do not promote an enabling environment for the CSO sector.
Undermine state at your own peril, says new NGO Council boss (June 2014)
A week after being elected into office in elections supervised by the Government, the new NGO Council National Chairman Wilson Kipsang Kipkazi has sounded a warning to what he terms 'CSOs undermining the State'. Kipkazi, in the company of the NGO Council Chief Executive Officer Kevinnah Loyatum, has claimed that about three foreign NGOs were working with some Civil Society Organisations (CSOs) to undermine the Jubilee government. According to the NGOs Council, "We know activities of some foreign NGOs and the millions of shillings they have channeled to the grassroots in parts of this country. We are telling them all NGOs must co-operate with the government of the day. The NGO Council will not work in isolation from the government," said Kipkazi in an interview with The Standard.
MPs throw out Bill targeting NGOs (December 2013)
Goverment moves to cut NGOs foreign funding (October 2013)
Civil society accuses judges of derailing reforms (November 2012)
Civil society to educate public on Constitution (August 2012)
Civil society up in arms over Integrity Bill (August 2012)
NGOs council wants funding at grassroots (June 2012)
Rights activists reject amended laws (June 2012)
NGOs wrangle over law to rein in sector (May 2012)
Ntimama finally appoints NGO board (March 2012)
Civil society already driving vision 2030 (July 2011)
Illegal NGOs to be closed (March 2011)
Kenya: Don't waste the new Constitution (August 2010)
Kenya: Voice of reason in law review (August 2010)
House agrees to repeal law on injustices (April 2010)
Civil society to educate public on draft law (May 2010)
The foregoing information was collected by the ICNL Civic Freedom Monitor partner in Kenya, Faith Kisinga Gitonga, consultant on the enabling environment for civil society.