Civil Society Organisations accuse regulatory body of issuing illegal directives

Ten Civil Society Organisations (CSOs) amongst them, those accused of conducting their operations illegally by not registering with the Public Benefits Regulatory Authority now say Monday's directive by the authority is illegal.

The organisations say that the law states that seeking Public Benefit Organisations (PBO) status is voluntary.

In a joint statement issued under their umbrella body Freedoms Forum (CFF) said the authority acted in ignorance of what the law provides for under the PBO Act.

"The call by the authority against unregistered CSOs is not only unconstitutional but also based on ignorance. The Freedom of Association is provided under Article 36 of the Constitution and international laws which Kenya US a signatory envision both registered and unregistered entities. The authority cannot purport to suspend parts of the Constitution to please the Executive," they said.

The authority had on Monday picked out 13 organisations from a list contained in the Ministry of Foreign Affairs letter to the Ford Foundation of NGOs that received a total of Sh752million between April 2023 and May 2024, accusing them of running "unauthorised accounts and implementing projects that can not be accounted for".

The letter had claimed that the organisations had expedited funding amounting to Sh194 million over the last month alone, in transactions that the ministry termed suspicious.

The authority's Chairman Mwambu Mabongah then explained that the 13 are only registered under both the Registrar of Companies and Societies Act.

"Moving forward, all organisations engaging in public benefit in Kenya shall be required to either obtain public benefit status as provided for under Section 7 and or register with the Authority under sections 10 and 11 of the PBOs Act," he ordered.

Legality

The 10 NGOs in a rejoinder said the directive that all organisations engaging in public trust must either seek PBO status or register with the Authority is illegal.

"We want to emphasise that the PBO Act does not make it compulsory for those charities registered in other regimes to seek PBO status or register under the Act is purely voluntary," the organisations comprised of Article 19 Eastern Africa, Defenders Coalition, IMLU, KHRC, MUHURI, Inuka Kenya Ni Sisi, InformAction TV, Initiative for Inclusive Empowerment, Constitution and Reform Education Consortium and PEN Kenya said.

The authority added that it had forwarded to the DCI files of the 13 organisations for probe.

They included; Transparency International, Kenya; Africa Uncensored Limited, Africa Centre for Open Governance, The Institute for Social Accountability (TISA), Mzalendo Trust, Usikimye, National Coalition for Human Rights Defenders.

The NGOs in their defence further stated that the board of the authority continues to be in office illegally and therefore its actions are null and void.

They added that the move to implement the act without first publishing its regulations is also not in order.

"We call upon the authority to publish the draft regulations for public engagement, halt illegal and partial implementation of the PBO Act, establish the PBOs dispute Tribunal to ensure that all excesses of the authority can be reviewed, host the PBO under the Ministry responsible for planning and National development and establish the joint committee of15 members as provided by the PBO Act to allow for Oversight towards implementation of the principles of collaborative partnerships," they added in the statement.