Public Benefits Organizations Act

The Act may be cited as the Public Benefits Organizations Act, 2013.

This section provides definitions for terms used in the Act, including "Authority", "authorized agent", "Board", "Cabinet Secretary", "Federation", "international non-governmental organization", "public benefit activity", "register", "terrorism financing", and "Tribunal".

States the Act's object is to create a conducive environment for growth of the public benefit organizations sector and for operations of registered public benefit organizations.

The Government must provide and promote an enabling environment for public benefit organisations to be established and operate; every State organ must coordinate policies to support that environment; and the Government and public benefit organisations must follow the First Schedule principles for collaboration.

Defines "public benefit organization" by three criteria: (1) organized and operated locally, nationally or internationally; (2) engages in public benefit activities in areas listed in the Sixth Schedule; and (3) is registered as such by the Authority. It then lists types of bodies in subsection (2).

The Authority must issue a certificate of registration in the prescribed form when registering a public benefit organization.

Foreign organizations intending to operate in Kenya must apply to the Authority for a certificate; the Authority must require applicants under subsection (2)(b) to follow the same registration procedures and requirements set out in regulations.

If sixty days pass after a public benefit organization applies for registration under section 9(1) and the Authority has made no decision, the organization may apply to the Tribunal for an order requiring the Authority to issue a registration certificate or to inform the organization that registration is refused with reasons.

Registration takes effect once the section "has met all the requirements for registration."

Official notices, letters, summons or other legal process are validly served on a registered public benefit organization when delivered in person or by mail to its authorized agent or to the address specified under section 8 (2)(d) and (3)(d).

The section establishes that any person may request a copy of any register entry in person or by mail, and that the Authority may refuse to issue a certificate copy unless the applicant meets conditions the Authority sets, including showing intended use.

The Authority may refuse registration for specified grounds and must notify the applicant of the reasons within fourteen days of the decision.

Aggrieved applicants may appeal decisions of the Authority to the Tribunal; the Tribunal must decide appeals within sixty days.

If a registered public benefit organization breaches the Act, the Authority may serve a written default notice; the organization may make written representations; if it fails to comply or the representations are unsatisfactory the Authority shall fine, suspend or cancel the registration, subject to a minimum compliance period of fifteen days; the organization may seek review within sixty days and may appeal to the Tribunal.

The Authority may, subject to section 17, suspend or cancel a registration certificate if there is substantial and credible evidence that the organization has ceased to exist; cancellation ends benefits but not obligations or reporting requirements.

Public benefit organizations must register under this Act to receive its benefits; organizations already registered under another Kenyan law cannot be registered under this Act while that other registration subsists.

Bestowing of public benefit organization status for a section registered under this Act.

The provision sets out information and constitution requirements for registering a public benefit organization and requires notification to the Authority of changes to submitted particulars within sixty days.

The Authority must consider applications, notify applicants if requirements are unmet giving a compliance period (up to 30 days), may extend that period once for up to 21 days on good cause, and must register organizations that meet requirements (including registering within 14 days after receipt of requested requirements). It may refuse and must notify refusal within the remaining days of the original sixty-day decision period.

Grants freedom of association including joining, forming or joining forums of public benefit organizations, exiting such forums, participating in lawful activities, and participating in elections of officials and representatives.

Establishes a National Federation of Public Benefit Organizations, sets membership eligibility, governance structure, election supervision, duties and powers of the Federation, Cabinet Secretary, Tribunal and the Independent Electoral and Boundaries Commission, and lists the Federation's functions.

Section 22 references the Constitution and other written law regarding leadership and integrity in appointments to statutory bodies.

Registered organizations may voluntarily join and maintain membership in a self-regulation forum; each forum must enter into a recognition agreement with the Authority after proving it represents a significant number of registered organizations as prescribed by the Cabinet Secretary.

Forums of public benefit organizations must establish and maintain binding codes and standards; they may form federations to enhance self‑regulation; forums must ensure codes are consistent with national and foreign policies and Kenyan law and include minimum provisions of general conduct.

Governing bodies must be separate from day-to-day managers; transparency and accountability must apply to all affairs; governing bodies must set conflict-of-interest guidelines; organizations must not discriminate (with a specified exemption); activities must be open to stakeholder scrutiny on request except for certain matters.

People who serve on the governing body of a public benefit organization must serve voluntarily and may only be reimbursed for costs and expenses incurred in serving the organization.

Expresses a commitment to the sanctity of human life and to maintaining a peaceful and non-violent orientation in all activities.

The Authority must encourage umbrella associations of public benefit organizations to develop and publish codes of conduct and must facilitate training on self-regulation for public benefit organizations.

Implement internal accounting and administrative procedures to ensure the transparent and proper use of financial and other resources.

Public benefit organizations registered under this Act must keep proper accounting records, prepare an annual statement of accounts that conforms to generally accepted accounting practice for non-profits, and include an independent auditor's opinion on whether the financial statements present fairly the organisation's financial position.

Requires a statement of its accounts audited in accordance with section 30 (2) above.

Registered public benefit organizations must provide the Authority, in writing, the names and physical, business and residential addresses of members of their governing body within one month after any appointment or election.

Members of governing bodies of public benefit organizations are exempt from personal liability for acts done in good faith on behalf of the organization or by virtue of their office.

Establishes the Public Benefit Organizations Regulatory Authority and lists powers including suing and being sued, holding and disposing of property, borrowing and investing, entering contracts, and performing other lawful acts to carry out its functions.

Section 35 sets out the Board composition (including a chairperson and various ex officio and appointed members), appointment roles for the Cabinet Secretary, experience and relinquishment requirements for appointees, co-option of up to three experts (who may not vote), resignation procedure, and that the Cabinet Secretary prescribes nomination rules.

Section 36 lists the qualifications required of members of the Authority, including citizenship, character and integrity, minimum degree, relevant experience, absence of subsisting public benefit organization offices or memberships, and affiliations such as membership of the National Assembly, local authority, or political party involvement.

The chairperson and members of the Authority's Board hold office for three years and may be re-appointed for one further final three-year term.

The chairperson, members of the Board of the Authority and the Director must each make and subscribe to a prescribed oath or affirmation of office before the Chief Justice.

The Cabinet Secretary must notify every vacancy in the Gazette within seven days of its occurrence.

Persons may be removed from office for gross misconduct, misbehaviour, or conviction for an offence involving moral turpitude, but removal may occur only by a Board resolution supported by at least two‑thirds of Board members.

If a Board vacancy occurs, the Cabinet Secretary must appoint a replacement from the shortlisted persons considered by the National Assembly; the person so appointed serves the remainder of the vacated member's term.

Lists the Authority's functions (registering and de-registering public benefit organisations; maintaining a register with sectors, affiliations and locations; interpreting national policy; receiving and reviewing annual reports; advising Government; issuing forms and model documents; facilitating information sharing; instituting inquiries; providing advice and training; and doing incidental acts) and requires that the Authority be independent and not act under the direction or control of any person or authority.

The Board has the power to control, supervise and administer the Authority's assets in a manner that best promotes the Authority's purpose.

The Authority must cooperate and share information on public benefit organisations at risk of terrorist financing; it has power to issue regulatory instruments for such organisations and may impose monetary, civil or administrative sanctions for violations.

The Board's conduct and regulation of its business and affairs must follow the Fourth Schedule; except as provided in that Schedule, the Board may regulate its own procedure.

Creates a Director for the Authority to be appointed by the Authority; sets a five-year term (eligible for one further and final five-year term); specifies eligibility criteria; makes the Director chief executive officer and secretary to the Board; requires attendance at Board meetings without a vote; allows the Board to remove the Director for inability or misbehaviour.

The Board must appoint a Deputy Director and necessary officers and staff, and when doing so must have regard to gender equity and regional balance.

The Board may, by resolution (generally or in particular cases), delegate to committees or to any member, officer, employee or agent of the Board the exercise of powers or performance of functions or duties of the Authority under this Act or any other written law.

Board members and Board officers, employees, agents or servants are not personally liable for acts or omissions done in good faith in executing functions, powers or duties under the Act; the Authority remains liable to pay compensation for injuries caused by exercise of powers or by failure of works.

The Board must keep the Authority's common seal in custody; the chairperson and Director must authenticate its affixing by signature; the chairperson and Director may authenticate certain documents and Board decisions by signature; the Board must nominate a member to authenticate the seal if either officer is absent.

Section 50 establishes the Tribunal membership composition and limits, prohibits members or staff of the Authority from serving, sets quorum, provides that the Authority determines members' remuneration in consultation with the Salaries and Remuneration Commission, and lists causes for termination including three-year expiry, ceasing to be an advocate, removal by the Chief Justice, or resignation.

The Tribunal must hear and determine complaints and matters or appeals under this Act and perform other functions conferred on it; it does not have criminal jurisdiction except as provided in section 53.

Section 52 sets out the Tribunal's powers on complaints and appeals, including court-like powers to summon witnesses and take evidence, to receive affidavit evidence and interrogatories, to summon expert evidence, to award costs, to make remedial orders (confirm, set aside, vary, quash, require revision or inquiry), to order status quo pending determination, and rules on representation, finality, appeal and non-compliance.

A person who refuses or fails to attend at the time and place mentioned in the summons served on him.

The Tribunal must issue a certificate stating the amount of awarded damages or costs on application; that certificate may be filed in the High Court and, once filed, is deemed a High Court decree and may be executed.

The Chief Justice may make rules governing the Tribunal's practice and procedure, consulting the chairperson and by notice in the Gazette, except as otherwise provided in the Act.

The Authority is entitled to fees, monies or assets that accrue to or vest in it in the course of exercising its powers or performing its functions under this Act or any written law.

The Authority's financial year is the twelve-month period ending on 30 June each year.

The Board must prepare annual revenue and expenditure estimates at least three months before each financial year, approve and submit them to the Cabinet Secretary, and may not increase them after the Cabinet Secretary's approval without that Secretary's consent.

The Board must ensure proper books and records are kept of the Authority's income, expenditure and assets.

The Board may invest any of the funds of the Authority in securities or in other approved securities or banks.

If no recipient organization is identified by the governing body when an organization is deregistered, wound up or dissolved, the Authority shall make the decision about which similar public benefit organization will receive remaining assets.

When the Authority cancels an organisation's registration it may require officials or members found in Kenya to provide an inventory and the whereabouts of assets; failure to provide when required is an offence; the Authority must prove the inventory could have reasonably been provided; the Cabinet Secretary may make regulations about tracing and safeguarding assets; dissolving organisations may choose recipients of assets if those recipients are certified by the Authority as in good standing.

The Authority may, where it deems necessary, institute inquiries into public benefit organizations under section 42(1)(h) and may conduct them itself or appoint a person; persons may be required to provide and verify accounts, produce documents and attend to give evidence; the Authority may reimburse reasonable expenses.

Forges or utters any document for the purposes of procuring registration.

Public benefit organizations may carry out lawful economic activities and may own and manage property, provided income is used solely to support their public benefit purposes.

Public benefit organizations may research, educate, publish, advocate and express views on public-interest and campaign issues, but they may not fundraise, campaign for or register candidates; the government must engage and invite them into policy making.

The Government must involve public benefit organizations in policy decision-making, ministries must designate officers to handle matters relating to those organizations, and those officers must deal with such matters and work closely with each other and with the Authority.

Entry permits where the services of such employees are necessary for the proper function of the organization.

The Cabinet Secretary may make regulations on the Authority's recommendation; regulations that impose conditions, restrictions or prohibitions must be proportionate; if breach of a regulation is an offence, regulations must, where practicable, give notice and a reasonable opportunity to comply before criminal liability.

The Non-Governmental Organisations Co-ordination Act, 1990 is repealed.

The transitional provisions in the Fifth Schedule apply when this Act commences.