Kenya

Last updated: 11 November 2019

Update

The Kenya Information and Communications (Amendment) Bill No. 61, 2019, is before Parliament and in November 2019 will be presented at public participation foras. The Bill seeks to amend the Kenya Information and Communications (Amendment) Act by regulating social media and imposing wide obligations on the administrators of social media platforms. It also introduces heavy penalties for failure to comply with new requirements. If passed, this Bill will drastically affect the digital space and is bound to have a chilling effect. For more information on this and other Bills, see the “Pending NGO Legislative / Regulatory Initiatives” section below in this report.

In addition, President Kenyatta signed the Data Protection Bill into law on November 8, 2019. The new law sets out requirements for the protection of personal data processed by both public and private entities. It also outlines key principles that will govern data processing, sets out the rights of data subjects, and assigns duties to data controllers and data processors. It was crafted amid concerns that the country lacked a comprehensive data protection mechanism in the face of the growth of digital economy.

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 FormsNon-Governmental OrganizationsSocieties
Registration BodyNGO Coordination BoardRegistrar of Societies
Approximate Number6,500+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 ActivitiesNGOs 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 AdvocacyPossible shutdowns of opposition media.Possible shutdowns of opposition media.
Barriers to International ContactNo 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 ResourcesNo legal barriersNo legal barriers
Barriers to AssemblyNo 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.
Population46.05 million (2015 est.)
CapitalNairobi
Type of GovernmentRepublic
Life Expectancy at BirthMale: 62.06 years
Female: 65.01 years (2014 est.)
Literacy RateMale: 90.6%
Female: 84.2% (2010 est.)
Religious GroupsProtestant: 47.7%; Roman Catholic: 23.5%; Muslim: 10%; indigenous beliefs: 10%; other: 2%
Ethnic GroupsKikuyu: 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$3,400 (2016 est.)

Source: The World Factbook. Washington, DC: Central Intelligence Agency, 2009.

Ranking BodyRankRanking Scale
(best – worst possible)
UN Human Development Index142 (2018)1 – 182
World Bank Rule of Law Index38 (2018)100 – 0
World Bank Voice & Accountability Index40 (2018)100 – 0
Transparency International143 (2018)1 – 177
Freedom House: Freedom in the WorldStatus: Partly Free (2018)
Political Rights: 4
Civil Liberties: 4
Free/Partly Free/Not Free
1 – 7
1 – 7
Foreign Policy: Fragile States Index17 (2018)178 – 1

International and Regional Human Rights Agreements

Key International AgreementsRatification*Year
International Covenant on Civil and Political Rights (ICCPR)Yes1972
Optional Protocol to ICCPR (ICCPR-OP1)No —
International Covenant on Economic, Social, and Cultural Rights (ICESCR)Yes1972
Optional Protocol to ICESCR (OP-ICESCR)No —
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)Yes2001
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)Yes1984
Optional Protocol to the Convention on the Elimination of Discrimination Against WomenNo —
Convention on the Rights of the Child (CRC)Yes1990
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)Yes2008
Regional Treaties
African Charter on Human and Peoples’ RightsYes1992
African Charter on the Rights and Welfare of the ChildYes2000
Treaty Establishing the African Economic CommunityYes2001
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in AfricaYes 2006
Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ RightsYes2004
Paris Agreement on Climate ChangeYes2017
African Youth Charter (AYC)No   —
Protocol on the Statute of the African Court of Justice and Human RightsYes2017

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] 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 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] eKLRthe 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] 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 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):

Pending NGO Legislative / Regulatory Initiatives

1. Bills Introduced in 2019

A number of Bills have been passed or tabled in Parliament recently and could have critical implications on civic space.

In July, 2019, the President of Kenya signed into law the Statute Law (Miscellaneous Amendments) Bill, which amends 11 Laws, including the Prevention of Terrorism Act (POTA) 2012 (Act No. 30 of 2012, Laws of Kenya). POTA seeks to provide measures for the detection and prevention of terrorist activities. One of the proposed amendments to this statute gives the National Counter Terrorism Centre (NCTC) powers to act as an approving and reporting institution for all CSOs and international non-governmental organizations (INGOs) engaged in preventing and countering violent extremism and radicalization. CSOs are categorical that the new mandate of the NCTC duplicates the role of the NGO Coordination Board, which regulates NGOs. They have therefore challenged the provisions of the law in court.

Another bill in Parliament, the Public Order (Amendment) Bill, No. 14, 2019 seeks to amend the Public Order Act. It proposes to make organizers of demonstrations personally liable for any damage or injuries that occur during demonstrations. The clerk of the National Assembly issued a notice calling for submissions of comments from the public on the Bill by May 8, 2019. The Bill is now before the Parliamentary Committee on Administration and National Security.

In June 2019, the National Assembly passed amendments to the Registration of Persons Act, through the Statute Miscellaneous (Amendment) Bill, 2018. The amendments sought to give the Government the authority to collect Kenyans’ DNA and to use Global Positioning System (GPS) coordinates in the registration of persons. The High Court of Kenya barred the government from enforcing these actions. The Government has since drafted a new bill – the Huduma Bill, 2019 – which will overhaul the Registration of Persons Act and related registration laws. The draft Huduma Bill was presented by the government and discussed at a public participation forum on July 30, 2019. The public raised concerns regarding among other things, protection and privacy of data, marginalization of minorities, access to basic services and socio-economic rights, limited civic education and awareness of the draft Bill, criminalization, and excessively disproportionate penalties for failure to comply with provisions. The implications of this draft on human rights (especially the right to privacy and freedom from discrimination, equality, and the right of access to government services) are yet to be fully determined. The government has not yet presented the draft Bill to Parliament.

The Kenya Information and Communications (Amendment) Bill, No. 61, 2019 is now before Parliament and in November 2019 will be presented at public participation foras. The Bill seeks to amend the Kenya Information and Communications (Amendment) Act by regulating social media and imposing wide obligations on the administrators of social media platforms. It also introduces heavy penalties for failure to comply with the new requirements. If passed, this Bill will drastically affect the digital space and is bound to have a chilling effect.

2. Judicial Processes on the Commencement of the PBO Act
The High Court ordered the Government on two occasions, October 31, 2016 and May 12, 2017, to operationalize the Public Benefit Organisations (PBO) Act. The first order was issued after CSOs filed a suit seeking a declaration from the court that the Cabinet Secretary for the Ministry of Devolution and Planning contravened the Constitution by failing to appoint a date for the coming into force of the PBO Act. The second order followed contempt of court proceedings filed against the Cabinet Secretary or the Ministry of Devolution and Planning, the Ministry of Interior and National Coordination and the Attorney General for failing to obey court orders to commence the PBO Act. To date the orders have still not been complied with.

The PBO Act, whose provisions are in line with the Constitution of Kenya, would, if implemented, introduce a more enabling environment for PBOs. The Act provides an opportunity for PBOs to self-regulate effectively, sets up an independent regulator, and specifies requirements for the transparent and speedy registration of PBOs. In addition, the PBO Act provides a framework for partnership between the government and PBOs. Further, it requires the government to support PBOs in a variety of ways while permitting PBOs to sustain their work through various avenues.

3. Amendments to the PBO Act
Between September and October 2018, the Non-Governmental Organisations (NGO) Coordination Board reached out to and met with civil society leaders in an effort to address the longstanding and contentious issues related to the PBO Act that is yet to be operationalized. The meetings revived the discussions on some of the proposals that the Government has previously made to amend the PBO Act. The civil society leaders rehashed the civil society position, which emphasizes that the optimal approach would be to commence the PBO Act before making any amendments. Nonetheless, they took the opportunity to review each of the proposals that the Regulator was making, sought feedback from other CSOs, and shared views on the proposals with the NGO Coordination Board.

Also present at the Government-CSO consultations were representatives from the Ministry of Interior and Coordination of National Government, which is the ministry in charge of CSOs, the Presidential Delivery Unit, and the Kenya National Commission for Human Rights.

These consultations continued to take place in the first quarter of 2019 and the feedback was intended inform the preparation of a bill to amend the PBO Act. However, as of November 2019 there were no new signs of movement on the PBO Act.

4. Open Government Partnership for Government-CSO Partnerships
There have been several efforts by the Government of Kenya at national and county levels to promote transparency, accountability, good governance and public participation through public-private partnerships. The government together with its partners from the private sector and civil society through the Open Government Partnership (OGP) launched the third National Plan of the OGP on January 28, 2019. The OGP is a collaborative initiative that seeks to make governments more open, accountable and responsive to citizens. Kenya joined the OGP in 2011 and since then has realized robust collaboration between all branches of the government, private sector and civil society in opening the government to the public. Recently, county governments have also joined the collaborative initiative. At the county level, the Cabinet Secretary for the Ministry of Interior and Coordination of National Government held a closed-door security meeting with CSOs in January 2019. The meeting focused on establishing collaborative efforts to address security challenges. The meeting brought 30 CSOs from the region, together with high level government officials from the Justice, Law and Order and Security sectors.

5. Computer Misuse and Cyber Crimes Act
On May 29, 2018, the High Court of Kenya issued a ruling that temporarily suspended the full implementation of 26 provisions in the Computer Misuse and Cyber Crimes Act pending the full hearing of a petition filed by the Bloggers Association of Kenya (BAKE). The Act, which was passed by Parliament on April 26, 2018, includes provisions relating to the prosecution of computer crimes and cybercrimes. However, the Bloggers state that the law also contains provisions which deny, infringe and threaten freedom of media and expression. They maintain that millions of internet users are at risk of being arrested and prosecuted for offences unconstitutionally, as was the case in 2016 when at least 60 bloggers were arrested for exercising their freedom of expression online. The draft Act is available at this link.

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 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).

UN Universal Periodic Review ReportsKenya, Universal Periodic Review 2010
Reports of UN Special RapporteursKenya
USIG (United States International Grantmaking) Country NotesUSIG: Kenya
U.S. State Department2018 Human Rights Reports
Failed States Index ReportsForeign Policy: Fragile States Index
IMF Country ReportsKenya and the IMF
International Commission of JuristsNot available
International Center for Not-for-Profit Law Online LibraryKenya

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 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.

Biometric IDs listing set for this year after secret tender (August 2018)
Kenya will conduct a fresh mass registration of people starting this year using a Sh3 billion biometric data listing kit that will collect details like ear, eye and voice patterns along with satellite details of their homes

Kibara seeks to mend strained relations with NGOs (July 2018)
The newly appointed NGO Coordination Board Chairperson Gichira Kibara in an interview with Capital FM News revealed that the board is set to hold a major consultative meeting with all players, to ensure the operating environment is stable, for the sector to thrive.

Obama arrives in Kenya, meets Kenyatta and Odinga (July 2018)
Former U.S. President Barack Obama arrived in Kenya for the first time since leaving office in 2017. Obama attended a meeting at State House in Nairobi with Kenyan President Uhuru Kenyatta, his Deputy William Ruto and his half-sister Dr Auma Obama. He has also held talks with opposition leader Raila Odinga who recently agreed to work with Kenyatta after a prolonged and highly contested election period in 2017.

Kenya court suspends government’s media shutdown (January 2018)
Kenya’s High Court has suspended the shutdown of three independent television stations, which were blocked after they had planned to broadcast a contentious, symbolic “swearing in” ceremony for opposition leader Raila Odinga. The country’s High Court ordered a 14-day suspension of the government’s shutdown – which affected stations NTV, Citizen and KTN TV – while a legal challenge can be heard, NTV said.

Sword now targets AfriCOG (August 2017)
A day after deregistering the Kenya Human Rights Commission, the NGO Coordinating Board now wants the Africa Centre for Open Governance (AfriCOG) shut down. The Board, in a letter to Director of Criminal Investigations, alleges AfriCOG has been operating illegally because it “is not registered under the NGO Coordination Act 1990 as required by law”.

High Court strikes down Kenya’s criminal defamation law (February 2017)
The High Court has declared as unconstitutional a section of the law that criminalizes defamation. Justice John Mativo on Monday ruled that Section 194 of the Penal Code violates the right to freedom of expression as guaranteed under Article 33 of the supreme law of the land. Two people charged separately with criminal defamation had sued challenging that law. The ruling is a big win for media houses and journalists in Kenya.

High Court orders commencement of the PBO Act without further delays (November 2016)
On October 31, 2016, Justice J. Onguto of the High Court ruled that the Cabinet Secretary of the Ministry of Devolution and Planning, Mr. Mwangi Kiunjuri, had 14 days to set and gazette the date of entry into force of the PBO Act 2013. Justice Onguto further declared that the delayed gazetting of the Act for more than 1,000 days since its signing into law on January 14, 2013, was “an abuse of discretion”, which should be exercised in public interest, and deemed it “unconstitutional”.

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 A