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

International and Regional Human Rights Agreements

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 registration may not be withheld or withdrawn unreasonably; and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.

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 [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 another case, Law Society of Kenya V Attorney General & 2 Others, [2013] 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, [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 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, [2013] 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, [2013] 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 [1990]
• The Non-Governmental Organizations Coordination Regulations [1992]
• Non-Governmental Organizations Coordination (Amendment) Regulations [2010]
• The Non-Governmental Organizations Council Code of Conduct [1995]
• The Companies Act, No. 17 [2015]
• The Societies Act, Chapter 108 of the Laws of Kenya [1968]
• The Trustees (Perpetual Succession) Act, Chapter 164 of the Laws of Kenya [1987]
• The Trustee Act, Chapter 167 of the Laws of Kenya [1982]
• The Income Tax Act, Chapter 470 of the Laws of Kenya
• East Africa Community Customs Management Act [2004]
• Income Tax (Charitable Donations Regulations) [2007]
• Sessional Paper No. 1 [2006]
• The East Africa Community Treaty [1999]
• The Public Benefit Organisations Act [2013] (expected to be operational)
• Data Protection Act, Laws of Kenya, No. 24 of 2019

Pending NGO Legislative / Regulatory Initiatives

1. In February 2020, Parliament issued a call for submissions of memoranda on the Registration of Persons (National Integrated Identity Management System) Regulations 2020. The Draft Regulations sought to provide mechanisms for operation and maintenance of the National Integrated Identity Management Systems (NIIMS). NIIMS was intended to be a single source of personal information of all Kenyans as well as foreigners resident in Kenya. The NIIMs Regulations 2020 were formulated as a result of the court order that was issued on 30^th January 2020. The order resulted from a successful public interest litigation petition that challenged proposed legislative amendments, which aimed to set up NIIMS. The petitioners (the Nubian Rights Forum and the Kenya Human Rights Commission) contended that the amendments posed serious and immediate threats to fundamental rights and freedoms protected under the Bill of Rights. The court ruled that the amendments concerned were in conflict with the Constitution, null and void. Specifically, the proposed collection of DNA and GPS co-ordinates for purposes of identification was intrusive and unnecessary. The Government was however allowed to proceed with the implementation of NIIMS and to process and utilize the data collected in NIIMS, only on condition that an appropriate and comprehensive regulatory framework was enacted for the implementation of NIIMS. The framework would have to be compliant with the applicable constitutional requirements identified in the ruling. In line with the court order to enact a comprehensive framework for the implementation of NIIMS, the government also formulated the Data Protection (Civil Registration) Regulations, 2020. The draft regulations sought to provide a legal framework under the Data Protection Act, 2019. In that regard, the Ministry of ICT invited the public to submit written memoranda, as well as make oral submissions on the bill between late February and early March 2020.
2. On March 31, 2020, the Senate established the Ad Hoc Committee on the COVID-19 Situation to conduct oversight of actions and measures taken by the national and county governments in addressing the spread and effects of COVID-19 in Kenya. On April 17, the Ad hoc Committee published the Pandemic Response and Management Bill, 2020, and invited written submissions from the public. The Bill, which sought to provide a legal framework for a coordinated response and management of activities during a pandemic, as well as temporary measures and relief during a pandemic, is yet to proceed to its first reading in the Senate. It attempts to acknowledge the wider role that information and communication technology plays in managing and responding to pandemics. The Ad hoc Committee received a total of 64 submissions from diverse organizations and individuals. The Committee’s engagement with stakeholders has yielded various results, including a decision by the Ministry of Health and the Ministry of Interior and Coordination of National Government to halt the detention of persons arrested for breaching the curfew, in facilities officially designated as quarantine facilities.

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) 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.

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