Recent High Court Ruling on PBO Act 2013 Stipulations
Registered NGOs Need Not Re-Register with the PBORA
One far-reaching requirement of the Public Benefit Organizations Act 2013 (PBO Act) was that Non-Governmental Organizations (NGOs) registered under the repealed Non-Governmental Organizations Coordination Act had to re-register under the PBO Act within a year of the Act coming into force. The Act came into force on 14th May 2024, meaning that the transition period was ending on 14th May 2025, but the CS- Interior had extended the re-registration period to 13th May 2026 as the one-year timeline had proven too short.
Registered NGOs Need Not Re- Register
Notwithstanding the Act’s provisions and the extension of time by the CS, the High Court, in David Caleb Otieno and Two Others v the Attorney General and Another (Petition No. E519 of 2024), has recently ruled that the requirement for previously registered NGO’s to re-register under the PBO Act is unconstitutional as it violates legitimate expectation of continuity of registration without arbitrary revocation. Justice Bahati Mwamuye found that the state could not demonstrate the public interest being pursued by the requirement for re-registration, sufficient to warrant a deviation from constitutional rights and freedoms within the scope of Article 24 of the Constitution on limitation of rights.
Composition of the PBO Authority and Disputes Tribunal Inconsistent with the Constitution
Another issue that the High Court was called upon to consider is the constitutionality of the composition of the PBORA and PBO Disputes Tribunal. The Court found that the appointment procedures of the members of the two bodies, as stipulated under the Act, expose the bodies to unwarranted influence and control from the executive. Such control is untenable where the bodies exercise quasi-judicial functions such as imposition of fines, suspension, or deregistration, as it could undermine the right to a fair trial under Article 50 and the independence of the bodies discharging judicial or quasi-judicial functions protected under Article 160 of the Constitution. Accordingly, the appointment of the members of the two bodies has to be made by the Judicial Service Commission.
Disciplinary Powers of the PBORA Violate the Right to a Fair Trial
There is more. The petitioners also challenged the powers of the PBO Regulatory Authority (PBORA) to take enforcement measures, including suspension and cancellation of registration, where it believes that a PBO has violated the Act or the PBO’s own constitution. The Court found that the Authority acting as the investigator, prosecutor, and judge in relation to infractions by a PBO violates the rights to fair administrative action and fair hearing since one cannot be a judge in their own cause. That an aggrieved PBO can appeal the Authority’s decision to the PBO Disputes Tribunal does not cure procedural unfairness because any suspension, fine, or deregistration by the Authority could have an irreversible negative impact on an organization’s operations, funding, and reputation.
Mandatory Disclosures Inconsistent with Data Protection
Section 32 of the PBO Act requires every registered PBO to submit annual reports to the PBORA, including financial statements, donor, and members’ personal information. This requirement, weighed against the Data Protection Act 2019 (DPA) that operationalizes Article 31 of the Constitution on the right to privacy, was found to unjustifiably intrude upon the privacy of people involved with PBOs. Under the DPA, personal data collected, whether by the government or private individuals, should be collected for a specific legitimate purpose, and should be as minimal as necessary for the purpose. These safeguards were found not to have been met; thus, the pursuit of transparency in PBO regulation had not been properly balanced with members’ right to privacy.
Conclusion
The requirement to re-register under the PBO Act and lacking regulations to guide the re-registration and compliance had put many organizations in a state of suspense, especially considering that registration is not guaranteed. This decision has dealt with the issue and more. Registered NGOs are now recognized as registered under the PBO Act. It enhances the right to privacy of members of PBOs. The decision also streamlines the composition and functioning of the PBORA and the PBO Disputes Tribunal to ensure conformity with constitutional edicts of the right to a fair trial and the independence of bodies exercising judicial or quasi-judicial functions.