Kenya

Last updated: 19 July 2022

Update

On March 31, 2022, the Supreme Court of Kenya upheld earlier decisions by the High Court and Court of Appeal finding President Uhuru Kenyatta’s and former Prime Minister Raila Odinga’s Building Bridges Initiative to amend the Constitution unconstitutional. The court held that in order to amend the Constitution, the government must take four sequential steps: civic education, public participation and collection of view, a Constituent Assembly debate, and a referendum. In addition, the court held that the President cannot initiate constitutional amendments or changes through a popular initiative provided for under Article 257 of the Constitution. The Court did hold that there had been public participation on the Constitution of Kenya (Amendment) Bill, 2020. Accordingly, there was no need for the Independent Elections and Boundaries Commission (IEBC) under Articles 10 and 257(4) of the Constitution to ensure that the promoters of the Bill complied with the requirements for public participation.

The National Assembly passed the ICT Practitioners Bill, 2020 on June 8, 2022. The Bill sought to establish a legal framework for the training, registration, licensing, practices, and standards of all ICT professionals in Kenya. However, after opposition from stakeholders in the ICT sector, key government officials, and a large part of the public, the President refused to sign the Bill and sent it back to Parliament.

Introduction

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 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 [1] (CSOs) played a prominent role in the struggle for independence.  From the time of independence until the late 1970s, many CSOs 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, CSOs (in particular Non-Governmental Organisations and faith-based organisations) began to demand a multi-party system.  They also became more vocal on national political issues such as constitutional reform and good governance.  Indeed, these CSOs 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-CSO relations as meaningful dialogue and increased engagement between the two sectors began to take place. The new government encouraged CSOs and other stakeholders to partner with them, especially in addressing complex issues facing the country.  However, CSOs were also aware they needed to address issues of competence, sustainability, and credibility within their own sector more earnestly if they were to play their role and engage with other partners effectively. A few efforts were made to address these issues and resulted in the formulation of standards for CSO competence and credibility that were to be administered through a self-regulation certification mechanism called Viwango (a word in Swahili meaning “standards”).

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 CSOs operate is supportive of civil society. The legal framework is characterized by multiple laws, which are implemented by different Government ministries, agencies, and departments. In 2013, a new law – The Public Benefit Organisations (PBO) Act – was passed. The law aimed to provide a more conducive legal framework for setting up and running CSOs that advance the public benefit.

Unfortunately, however, the PBO Act has yet to be operationalized and implemented. Between 2013 and 2015, there were four attempts to amend the PBO Act, 2013, through proposals tabled in Parliament, but civil society successfully thwarted these plans through spirited campaigns. Since then, CSOs have continued to urge the Government to commence the PBO Act, 2013 but without success due to lack of political will from the Government.

[1] 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
Approximate Number 6,500+ 70,000+
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 Possible misuse of Sections 22 & 23 of the Computer Misuse and Cybercrime Act that outlaws publication of false information to intimidate critics and independent voices. Possible misuse of Sections 22 & 23 of the Computer Misuse and Cybercrime Act that outlaws publication of false information to intimidate critics and independent voices.
Barriers to International Contact No NGO can become a branch or affiliate of foreign organizations of political 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 54,685,051 (July 2021 est.)
Capital Nairobi
Type of Government Republic
Life Expectancy at Birth
Male: 67.65 years
Female: 71.03 years (2021 est.)
Literacy Rate Male: 85%
Female: 78.2% (2018)
Religious Groups Christian 85.5% (Protestant 33.4%, Catholic 20.6%, Evangelical 20.4%, African Instituted Churches 7%, other Christian 4.1%), Muslim 10.9%, other 1.8%, none 1.6%, don’t know/no answer 0.2% (2019 est.)
Ethnic Groups Kikuyu 17.1%, Luhya 14.3%, Kalenjin 13.4%, Luo 10.7%, Kamba 9.8%, Somali 5.8%, Kisii 5.7%, Mijikenda 5.2%, Meru 4.2%, Maasai 2.5%, Turkana 2.1%, non-Kenyan 1%, other 8.2% (2019 est.)
GDP per capita $4,200 (2020 est.)

Source: The World Factbook. Washington, DC: Central Intelligence Agency, 2020.

Ranking Body Rank Ranking Scale
(best – worst possible)
UN Human Development Index 143 (2020) 1 – 182
World Justice Project Rule of Law Index 106 1-139
World Bank Voice & Accountability Index 121 (2020) 1 – 193
Transparency International Corruption Perceptions Index 128 (2021) 1 – 180
Freedom House: Freedom in the World Status: Partly Free (2022)
Overall Ranking: 48
Political Rights: 19
Civil Liberties: 29
Free/Partly Free/Not Free
100 – 0
40 – 0
60 – 0
Fund for Peace: Fragile States Index 33 (2022) 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
Convention Against Torture Yes 1997
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
Rome Statute of the International Criminal Court Yes 2005
Paris Agreement on Climate Change Yes 2017

Regional Treaties
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
Protocol on the Statute of the African Court of Justice and Human Rights Yes 2017
African Youth Charter No

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—

  1. freedom to seek, receive or impart information or ideas;
  2. freedom of artistic creativity; and
  3. academic freedom and freedom of scientific research.

(2) The right to freedom of expression does not extend to—

  1. propaganda for war;
  2. incitement to violence;
  3. hate speech; or
  4. advocacy of hatred that—
  5. constitutes ethnic incitement, vilification of others or incitement to cause harm; or
  6. 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—

  1. information held by the State; and
  2. 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—

  1. registration may not be withheld or withdrawn unreasonably; and
  2. 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.

National Laws and Regulations Affecting Sector

Relevant regional and national-level laws and regulations affecting civil society include (see also Kenya Gazette):

Pending NGO Legislative / Regulatory Initiatives

  1. The Trustees (Perpetual Succession) (Amendment) Act, No. 13 of 2021 was gazetted on  December 9, 2021. It seeks to simplify the registration of trusts by, among other reforms, moving the administration of the process to the office of the Principal Registrar of Documents. The Act broadens the scope of who can set up a trust to “any person or body of persons lawfully constituted for purposes of forming a trust.” Initially, the law provided that “Trustees who have been appointed by any body or association of persons . . . who have constituted themselves for any such purpose” (religious, educational, literary, scientific, social, athletic, or charitable). In addition, the Act expands the purposes that a trust can pursue to include charitable and non-charitable purposes. The earlier provisions that limited trusts’ purposes to “religious, educational, literary, scientific, social, athletic or charitable” were deleted. Following public participation, an explicit timeline for registration of a trust was introduced. The Registrar should take not more than 60 days to consider an application for incorporation of a trust, in order to grant or reject the application. This limitation of time will shorten the registration process and facilitate growth of the number of trusts in the country.There is a pending law reform initiative, led by the Kenya Community Development Foundation (KCDF) and the East Africa Philanthropy Network (EAPN), seeking broader reforms to the Trustees (Perpetual Succession) Act.  Its objective is to create a strong legal foundation for the creation, regulation, and governance of trusts and foundations in Kenya through reviewing and amending the Trustees (Perpetual Succession) Act, CAP 164 and the Trustees Act, Cap 164.
  2. Both the National Assembly and the Senate have passed the Community Groups Registration Bill (National Assembly Bills No. 20 of 2021). The Bill seeks to provide a regulatory framework for the registration and regulation of community groups, which form the larger proportion of civil society organizations in the country. In the bill, “community group” is defined as “a voluntary association of individuals from the same community which is self organised for a common purpose aimed at improving the livelihood of the group members or for a community benefit and includes a special interest group, community project and community-based organisation but shall not include groups formed to champion a political cause or contrary to public policy.” The Bill establishes the office of the Director of Social Development and gives it the power to mobilize communities to form groups, as well as to register, monitor, supervise and evaluate community groups, among other functions. The Bill also gives the Director the power to declare a community group as a “special interest community group” and to approve the merger of community groups. Further, the bill provides for renewal of registration, following the expiry of two years after registration.

Organizational Forms

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) (Amendment) Act, 2021, No.13 of 2021.

(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.

Grassroots organizations exist to advance the interests of their members and the immediate needs of the local communities in which they operate.

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, [1] 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. [2]. 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. [3] 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.


[1]  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.

[2]  Kameri-Mbote, Patricia, Dr. (2000) ‘The Operational Environment and Constraints for NGOs in Kenya’ IELRC Working Paper, www.ielrc.org.

[3]  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.

It is lastly worth mentioning that changes to the Registration of Persons Act, 2015 under the Statute Law (Miscellaneous Amendments) Bill, 2018 allowed the Government of Kenya to collect Kenyans’ DNA and use Global Positioning System (GPS) coordinates in the registration of persons, enabling the tracking of their location via satellite. However, this was challenged in court through a public interest case filed by NGOs. The High Court then barred the government from collecting DNA and GPS coordinates from any person and from using the data collected during the registration to withhold any services or bar anyone from accessing public facilities. The government was also barred from sharing or disseminating the data with any international organizations.

The Statute Law (Miscellaneous Amendments) Bill, 2018 was passed hurriedly and championed by the government following an al-Shabab terrorist attack in Nairobi in January 2019. The Bill was finally signed into law by the President in July 2019. As a result, it did not benefit from the views of the public. Some of the proposed amendments in the Statute Law (Miscellaneous Amendments) Bill were related to the Registration of Persons Act, 2015, and established a National Information Management System (NIIMS), which was quickly rolled out across the country. In addition to the Registration of Persons Act, 2015, the Bill amended 10 other laws, including the Prevention of Terrorism Act (POTA) 2012 (Act No. 30 of 2012, Laws of Kenya). One of the amendments to the POTA gave the National Counter Terrorism Centre (NCTC) powers to act as an approving and reporting institution for all domestic and international non-governmental organizations (NGOs) engaged in preventing and countering violent extremism and radicalization. NGOs have been categorical that the new NCTC mandate duplicates the role of the NGO Coordination Board, thus increasing the state’s control over civil society.

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.

Media freedom in Kenya came under an unprecedented attack after the Communications Authority shut down three major television stations while broadcasting live footage on January 30, 2018 of a swearing-in ceremony in which opposition leader Raila Odinga took an oath as the “People’s President”. Media representatives reported that prior to the shutdown they were directed to refrain from broadcasting the swearing-in or risk withdrawal of their licences and disconnection. Kenya’s High Court on February 1, 2018 suspended the shutdown of the three television stations, but immediately after this ruling the three channels remained off the air. While two of the media stations (KTN News and NTV) were switched back on seven days after the initial shutdown, the third, Citizen TV, was switched on only after ten days. The shutdown was widely and explicitly condemned across the country and internationally. It raised concerns over the brazen manner with which the state violated the freedom of the media and disregarded the Constitution, international and human rights obligations and the rule of law.

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 RestrictionsAccording 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).

Barriers to Public Participation

The laws of Kenya generally facilitate realization of the right to public participation. The Constitution recognizes public participation recognized as a core part of the democratic form of government. It is upheld as one of the national values (Art .10). It is also one of the national principles of public service (Art. 232). Several articles spell out that public participation is required at the national and county government levels in legislative and budgetary processes (Art. 201, 118, 196). A number of laws also stipulate that public participation is a requirement, including the Public Finance Management Act, the County Governments Act, the Urban Areas and Cities Act, the Public Procurement and Disposal Act, and the County Public Participation Guidelines. In few cases, like Makueni county, county governments have worked jointly with civil society organizations to raise awareness on public participation. The result has been a more engaged citizenry.

In addition, some laws mandate the integration of minorities or marginalized groups in county development and governance. For example, the County Government Act (section 34e) requires county governments to protect and promote the interests and rights of minorities and marginalized communities. Also, when establishing mechanisms, processes, and procedures for community participation, cities or urban areas must consider the special needs of minority and marginalized groups (County Government Act, 2nd schedule, clause 2). The Public Finance Management (County Government) Regulations (section 207) provide that regulations should provide for special needs of people who cannot read or write, people with disabilities, women and other disadvantaged groups.

However, the right to public participation is not fully recognized in practice. Civic education on public participation, though acknowledged as critical, is largely wanting in most parts of the country. A number of state practices restrict the effective implementation of public participation. These include lack of political will; restricted access to information; weak, uncoordinated, or missing structures or mechanisms to support implementation of public participation laws and policies; inadequate funding; and weak feedback practices. Limits to the realization of the right to public participation fall disproportionately on “special interest groups” (SIGs) such as women, youth, and people with disabilities. According to a 2020 survey by Mzalendo and TEAM with support from ICNL, SIGs are particularly affected by challenges that hinder public participation. The survey sought to examine the level of involvement of these groups in the decision-making processes in the county government of Kisumu during the COVID-19 pandemic, the effectiveness of their participation in decision-making processes, and the challenges they face. The survey found that there is a low level of engagement of SIGs in decision-making processes, occasioned by poor implementation of the legal framework for public participation, poor feedback processes, and the high costs of online platforms for engagement, among other challenges.

In addition, while there are no legal restrictions on climate or environmental advocacy, there are several practices, contrary to existing legal provisions, that have made the work of activists or communities particularly challenging. For example, there have been a few instances where people seeking to benefit from legal provisions that mandate consultation with or compensation of community members in areas where prospective projects are to be set up have bought parcels of land from the residents at disproportionately low prices. This dilutes the voice of community members on concerns they may have regarding prospective projects. In some cases, authorities have issued mining prospecting permits over community trust land, without following the procedures required by the law (Mining Act, No. 12 of 2016, sections 38(2) & 128), which requires the community to give consent. Similarly, the Community Land Act (No. 27 of 2016), section 36, requires companies investing in community land to enter into a benefit sharing agreement with the community. Few companies do so.

A number of court cases have addressed the right to public participation:

  • In the National Gender and Equality Commission V Independent Electoral and Boundaries Commission (IEBC) & Another [2013] 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 Law Society of Kenya V Attorney General & 2 Others, [2013] eKLRthe 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, [2013] 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 was 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 Moses Munyendo & 908 others v Attorney General & another, [2013] eKLRthe court considered whether the Crops Act, 2012 and the Agriculture, Fisheries and Food Authority Act, 2012 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.
  • In Nairobi Metropolitan PSV Saccos Union Limited & 25 others v County Of Nairobi Government & 3 others, [2013] eKLRthe 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 that there was adequate and appropriate public participation prior to the enactment of paragraph 6.1.
UN Universal Periodic Review Reports Kenya, Universal Periodic Review 2020
Reports of UN Special Rapporteurs Kenya
USIG (United States International Grantmaking) Country Notes USIG: Kenya
U.S. State Department 2020 Human Rights Report
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

While we aim to maintain information that is as current as possible, we realize that situations can rapidly change.  If you are aware of any additional information or inaccuracies on this page, please keep us informed; write to ICNL at ngomonitor@icnl.org.

General News

Uhuru Refuses to Sign Controversial ICT Bill Into Law (June 2022)
President Uhuru Kenyatta has refused to sign into law the controversial Information Communication Technology Practitioners Bill, commonly referred to as the ICT Bill. While assenting to other Bills presented to him at State House, Nairobi on Tuesday, June 21, the President sent the Bill to Parliament with a memoranda asking the House to listen to practitioners and put into consideration their concerns.

Kenya’s Supreme Court declares BBI unconstitutional (March 2022)
The Supreme Court on Thursday stopped President Uhuru Kenyatta’s divisive bid to make sweeping constitutional changes through the Building Bridges Initiative (BBI), which opponents say was an attempt to widen his powers. In a majority judgment, the Supreme Court, whose ruling is final, upheld a finding by the lower courts that Mr Kenyatta initiated the changes through a constitutional provision exclusively reserved for ordinary citizens.

Gov’t Warns Over 7,000 NGOs Of De-Registration Over Non-Compliance (March 2022)
Interior Cabinet Secretary Fred Matiangi said that out of the 11,890 registered NGOs, 9525 are active but only 3,000 have been filing compliance reports. He similarly warned the NGOs against being used by politicians during the electioneering period to perpetuate instability.

State plans to register ICT practitioners in new bill (December 2020)
Professionals working in Kenya’s ICT sector will be required to register with the government to practice in their respective fields. This is according to a new Information and Communication Technology Practitioners Bill 2021, which is set to increase the burden of compliance on both individual and corporate service providers in the lucrative sector.

Kivutha Kibwana moves to Supreme Court over BBI bill (November 2020)
Makueni Governor Kivutha Kibwana has moved to the Supreme Court, seeking advisory opinion on issues regarding the proposed constitutional amendments through the BBI.

Police arrest 56 Kenyans during Sabasaba protests against brutality (July 2020)
The Saba Saba March for Our Lives protest turned chaotic on Tuesday after police teargassed demonstrators and arrested at least 56 people. The march against police brutality barely started as police barricaded all the start points.

Respect Kenyans’ Privacy During Contact Tracing, State Warned (April 2020)
Human Rights groups have warned that the state’s heightened surveillance measures to monitor citizens during the coronavirus pandemic could result in abuse. The groups said that an increase in state digital surveillance, such as obtaining access to mobile phone location data, threatens privacy, freedom of expression and freedom of association.

The Resilience of Kenya’s Internet Freedoms During the Covid-19 Pandemic (April 2020)
Kenya recorded the first case of Coronavirus infection on 12th March. Since then, the numbers have continued to grow with a total of 103 infections and 3 fatalities as at 30th March. In order to curb the disease spread, the government instituted a number of measures, including border closure, and mandatory 14 days self-isolation for returning travelers. The government has announced a stay at home campaign, ordered curfews and banned public gatherings of more than 10 individuals. The Internet and related technologies have proven to be essential tools, in this period, for implementation of the measures and citizens’ exercising economic, social and political rights. Self-isolation is enforced through monitoring of movements via mobile phone. Further, citizens’ access to information related to the pandemic from health authorities is through Internet platforms. Meanwhile, business and education institutions have adopted the internet to continue operations.

Uhuru signs Bill for protection of personal data (November 2019)
President Uhuru Kenyatta has signed the Data Protection Bill into law setting the stage for the controversial Huduma Namba. The new law creates the position of a Data Commissioner who will oversee the operations of keeping data for Kenyans safe. Pundits opine that the move by President is linked to the court case over Huduma Namba registration that was filed on grounds that Kenya had no legislation on data protection.

Thumbs up to Kenya as delegates arrive for global conference (July 2019)
United Nations Population Fund has lauded the efforts and commitment of the Government of Kenya in preparations to host the International Conference on Population and Development (ICPD). Director of Communications at Arthur Erken says the efforts have translated to increased interest in the topics that affect marginalized groups from around the world who will be represented at the forum.

President signs amended Statute Law boosting counter-terrorism campaign (July 2019)
President Uhuru Kenyatta signed into law the Statute Law (Miscellaneous Amendments) Bill, 2019 and the Insurance (Amendment) Bill of 2018, at State House Nairobi.The Statute Law (Miscellaneous Amendments) Bill amends 11 Acts of parliament including those on Merchant Shipping, Alcohol Control, Tourism, Public Finance Management, Prevention of Terrorism and the Insolvency Act.

Senate Halts NIIMS Registration (February 2019)
The recently launched digital registration for Kenyans to get the unique and new forms of identification (Huduma Namba) has been suspended until further notice after the CSs of Interior and ICT failed to appear before the Senate. The legislators held that the exercise would only continue after Interior CS Fred Matiang’i and ICT’s Joe Mucheru appeared before the Senate Standing Committee on National Security, Defense, and Foreign Relations on March 11, 2019, and a positive verdict given thereafter.

NIIMS is legally flawed, offers no protection against cyber crime (February 2019)
President Uhuru Kenyatta recently signed a law establishing the National Integrated Identification Management System (NIIMS) as a platform that will digitise and centralise records of vital life events of citizens and of foreigners’ resident in Kenya.

Government will end extra-judicial killings at the Coast (January 2019)
Interior Cabinet Secretary Fred Matiangi has said the government will put an end to extra -judicial killing of suspects at the Coast. “We shall have respect to the rule of law and lives of citizens of this country,” said Matiangi.

News archive

Biometric IDs listing set for this year after secret tender (August 2018)

Kibara seeks to mend strained relations with NGOs (July 2018)

Obama arrives in Kenya, meets Kenyatta and Odinga (July 2018)

Kenya court suspends government’s media shutdown (January 2018)

Sword now targets AfriCOG (August 2017)

High Court strikes down Kenya’s criminal defamation law (February 2017)

High Court orders commencement of the PBO Act without further delays (November 2016)

Kiunjuri operationalises 2013 Public Benefit Organisations Act (September 2016)

Parliament passes Access to Information law (August 2016)

Women MPs vow to fight gender Bill collapse in court (April 2016)

Kenyan Assembly Approves Access to Information Bill (April 2016)

NGOs board bankrupt, Parliament told (April 2016)

Fresh bid to amend Kenya’s NGO law opposed by civil society (September 2015)

Embassy rejects plea on funding NGO (May 2015)

NGOs lose licences over terrorism claim (May 2015)

Ban NGOs linked to gay rights, says team (May 2015)

NGOs in Kenya urge taskforce not to alter law (March 2015)

15 NGOs Deregistered On Suspicion of Funding Terrorism (December 2014)

Bill on NGO funding proposes a return to days of intolerance (November 2014)

Democracy and development under siege in Kenya (November 2014)

100,000 jobs at risk over law on NGO financing (November 2014)

Fresh Onslaught on Foreign Funding and Civic Space (October 2014)

Kenyan President uses UK human rights plans to defend war crimes charges (October 2014)

Civil Society States Position on Miscellaneous Amendments Bill 2014 (July 2014)

Undermine state at your own peril, says new NGO Council boss (June 2014)

In Kenya, averting a move to strangle civil society with the financial noose, Maina Kiai (January 2014)

MPs throw out Bill targeting NGOs (December 2013)

Why the International Community Supports Development Projects in Kenya (November 2013)

Goverment moves to cut NGOs foreign funding (October 2013)

Article on the PBO Act, Head of Operations, Compliance and Research, NGO Coordination Board (August 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)

Civil society challenges President over pending electoral laws (June 2012)

Rights activists reject amended laws (June 2012)

NGOs oppose Finance Minister’s plan to tax their income (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)

Constitutional community justice systems in Kenya (May 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)

Kenyan health Office says health aid best channeled through governments (July 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.