the public benefits (amendment) bill,2014

8/10/2019 The Public Benefits (Amendment) Bill,2014

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The Public Benefits Organizations(Amendment) Bill,2014

THE PUBLIC BENEFITS ORGANIZATIONS (AMENDMENT)

BILL, 2014

A Bill fo

AN ACT of Parliament to amend thePublic Benefits Organizations Act,

and for connected purposes-

ENACTED by the Parliament of Kenya, as follows—

Short title 1! !his Act may be cited as the Public Benefits

Organizations "Amendment# Act, $%&'

Amendment of

section $ of (o&)

of $%&*

2! !he Public Benefits Organizations Act, "in this Act

referred to as +the principal Act#, is amended in

section $—

"a# by renumbering section $"&# as section $ and

"b# by deleting the definition of +.abinet Secretary

and inserting the following new definition

+.abinet Secretary means the .abinet

Secretary for the time being responsible for

matters relating to public benefit organizations

Amendment of

section*of (o&)

of $%&*

"! Section * of the principal Act is amendedby deleting

paragraph "g#

Amendment of

section ' of (o &)

of $%&*

4! Section ' of the principal Act is amendedby deleting

subsection "$#

Amendment of

section / of (o&)of $%&*

#! Section / of the principal Act is amended in

subsection"&# by deleting the words +indi0iduals or organizations and substituting therefor the words

+indi0iduals, organizations or charitable and

humanitarian institutions

&




Amendment of

section 1 of (o &)

of $%&*

$! Section 1 of the principal Act is amended in by

inserting the following new subsections immediately

after subsection "'# —

+"'A# A public benefit organization registered under

subsection "&# shall be classified by the Authority in

the manner set out in the Second Schedule

"'B# !he Authority upon consultation with the

.abinet Secretary, may from time to time re0iew the

classification of public benefit organizations

"'.# !he .abinet Secretary shall, upon consultation

with the Authority, ma2e regulations to pro0ide for

the manner, conduct and criteria for classification of public benefit organizations

Amendment of

section ) of (o &)

of $%&*

%! Section ) of the principal Act is amended in

subsection")# by deleting the words +si3ty and

substituting therefor the word +thirty

Amendment of

section &% of (o

&) of $%&*

&! Section&% of the principal Act is amended by

inserting the following new subsection immediately

after subsection "&# —

+"&A# !he Authority may from time to time

re0iew the re4uirements for registration under

this Act

Amendment of

section && of (o

&) of $%&*

'! Section && of the principal Act is amended—

"a# by deleting subsection "$#

"b# by deleting subsection "*#

"c# in subsection "'# by deleting the words+pursuant to subsection $"b# to undergo the

same registration procedures and substituting

therefor the words + under subsection "&# to

undergo the registration procedures under

section ) of this Act

$




"d# in subsection "/#—

"i# by deleting the e3pression +"$#"b# andsubstituting therefor the e3pression+ "&#

"ii# by deleting the words +one third appearing

in paragraph "a# and substituting therefor the

words +two thirds and

"e# by deleting subsection "1#

Amendment of

section &$ of (o

&) of $%&*

10! Section &$ of the principal Act is amended by

deleting the marginal note and substituting therefor

the following new marginal note —

+Order for issuance of .ertificate of registration

Amendment of

section $) of

(o &) of $%&*

11! Section $) of the principal Act is amended —

"a# in subsection "&# by deleting the word

+Authority and substituting therefor the word

+5ederation and

"b# in subsection "$# by deleting the word

+Authority and substituting therefor the word+5ederation

Amendment of

section $6 of (o

&) of $%&*

12! Section $6 of the principal is amended —

"a# by renumbering section $6 as section $6 "&#

"b# by inserting the following new paragraphs

immediately after paragraph "b# —

+"c#not recei0e more than fifteen percent of its

total funding from foreign donors

"d# where it recei0es more than fifteen percent

of its total funding from foreign donors, apply

to the Authority for registration as an

international non-go0ernmental organization

*




"e# in each financial year, prepare and submit

for audit its accounts to the Auditor-7eneral

"f#publish its annual audited financial accounts

in at least two daily newspapers of national

circulation and

"g# be sub8ect to the 8urisdiction of the 9thics

and Anti-.orruption .ommission and

"c# by inserting a new subsection immediately after

subsection "&# —

+"$#!he Authority shall, in consultation with the5ederation, publish guidelines for monitoring,

auditing and accountability of funds of a public

benefits organization

Amendment of

section *& of (o

&) of $%&*

1"! Section *& of the principal Act is amended by

deleting the words +si3 months and substituting

therefor the words +three months

Amendment of

section ** of (o

&) of $%&*

14! Section ** of the principal Act is amended—

"a# by renumbering section ** as section **"&# and

"b# by inserting the following new subsection

immediately after subsection "&# —

+"$# !he pro0isions of subsection "&# shall not

relie0e a public benefit organization of the

liability, to pay compensation or damages to any

person for any in8ury to him, his property or any

interests caused by the e3ercise of any power or

by the failure of a member of any go0erning body of a public benefit organization, whether

wholly or partially

Amendment of

section */ of (o1#! Section */ of the principal Act is amendedin

subsection "&# —

'




&) of $%&*

"a# by deleting the words +.abinet Secretary

appearing in paragraph "a# and substituting

therefor the word +President and

"b# bydeleting the words +rendered distinguished

ser0ice appearing in paragraph "b# and

substituting therefor the words +2nowledge and

e3perience

:epeal of section

*) of (o &) of

$%&*

1$! Section *) of the principal Act is repealed

Amendment of

section '& of (o

&) of $%&*

1%! Section '& of the principal Act is amended—

"a# by renumbering section '&"&# as section '&

"b# by deleting the words +from among the

shortlisted persons considered by the (ational

Assembly in accordance with the !hird

Schedule and substituting therefor the words

+in accordance with the pro0isions of this Act

and

"c# by deleting subsection "$#

Amendment of

section '$ of (o

&) of $%&*

1&! Section '$ of the principal Act is amended in

subsection "&# by inserting the following new

paragraph immediately after paragraph "b# —

+"bb# classify public benefits organizations

registered under this Act

Amendment of

section '1 of (o

&) of $%&*

1'! Section '1 of the principal Act is amended in

subsection "&# by deleting the words +a ;eputy

;irector and such substituting therefor the words+such ;eputy ;irectors

Amendment of

section /% of (o

&) of $%&*

20! Section /% of the principal Act is amended—

/




"a# in subsection by deleting the words +by the

.hief <ustice and appro0ed by the national

assembly and substituting therefor the words

+appointed by the .abinet Secretary upon therecommendation by the <udicial Ser0ice

.ommission

"b# in subsection "1# by deleting the word +three

appearing paragraph "a# and substituting

therefor the word +fi0e and

"c# by inserting the following new subsections

immediately after subsection "1# —

+"=# (otwithstanding subsection "1# "a# achairperson and member of the !ribunal may be

re-appointed for a further and final term of fi0e

years

")# !he .hairperson and members of the

!ribunal shall ser0e on a part-time basis

Amendment of

section /$ of (o

&) of $%&*

21! Section /$ of the principal Act is amended —

"a# in subsection "&&# by deleting the words +andthe decision of the >igh .ourt shall be final

and

"b# by deleting subsection "&$#

Amendment of

section 11 of (o

&) of $%&*

22! Section 11 of the principal Act is amended by

deleting subsection "'#

:epeal of section

1= of (o &) of

$%&*

2"! Section 1= of the principal Act is repealed

Amendment of

section 1) of (o

&) of $%&*

24! Section 1) of the principal Act is amended byinserting the words +Authority for consideration and

recommendation to the immediately before the

words +Principal ?mmigration Officer

1




Amendment of

section 16 of (o

&) of $%&*

2#! Section 16 of the principal Act is amended—

"a# in subsection "&# by deleting the words +on the

recommendations of and substituting therefor the words +upon consultation with

"b# by deleting subsection "$#and

"c# by deleting subsection "*#

Amendment of the

Second Schedule2$! !he principal Act is amended by deleting the Second

Scheduleand substituting therefor the following new

Schedule —

S9.O(; S.>9;@9 "s1#

.ASS?5?.A!?O( O5 P@B?. B9(95?!S

O:7A(?A!?O(S

All public benefits organizations shall be classified

as follows according to the purpose for which the

public benefit organization is set up —

.ASS ;9S.:?P!?O(

;9C9OPD9(! Public benefit organizations

in this class include those

whose acti0ities

arecentered on the rights set

out under Article '* of the

.onstitution

7OC9:(A(.9 E

PO?!?.S

Public benefit organizations

in this class include those

whose acti0ities are

centered on the rights set

out under Article *) of the.onstitution

:epeal of the !hird

Schedule2%! !he !hird Schedule of the principal Act is repealed

=




Amendment of the

5ifth Schedule2&! !he 5ifth Schedule of the principal Act is amended

by deleting paragraph 6 and substituting therefore

the following new paragraph—

+'!Dembers of the go0erning board of the (on-

7o0ernmental Organizations .ouncil in office

immediately before the commencement of this Act

shall continue in office as members of the go0erning

board of the 5ederation under this Act, and shall e3it

office upon the conduct of elections of members to

the go0erning board of the 5ederation by the

?ndependent 9lectoral and Boundaries .ommission,

which shall not be later than ninety days

MEMORANDUM OF OBECTS AND REASONS

)




!he principal ob8ect of this Bill is to amend the Public Benefits

Organizations Actto ma2e pro0isions for a single regulatory mechanism

for Public Benefits Organizations

!he Bill further see2s to ma2e pro0ision for stringent mechanism for

transparency and accountability in financing of Public Benefit

Organization

Cl*+ 1 pro0ides for the short title

Cl*+ 2 proposes to amend the definition of .abinet Secretary for

purposes of clarity

Cl*+ " proposes to amend section * of the Act by deleting paragraph "g#

which places an obligation on 7o0ernment to fund Public Benefits

Organizations

Cl*+ 4 pro0ides for the amendment of the section 'of the Act by

deleting paragraph "$# which creates unnecessary obligation on State

Organs to reorient its ser0ice deli0ery mechanisms around Public Benefits

Organizations

Cl*+ # proposes to amend section / of the Act to include +charitable and

humanitarian institutions in the definition of Public Benefit Organizations

for purposes of pro0iding for their regulation

Cl*+ $ proposes to amend section 1 of the Act to pro0ide for classification of public benefits organizations

Cl*+ % proposes to amend section ) of the Act to reduce the time gi0en

to Public Benefits Organizations to notify the Authority of change of

particulars to from si3ty to thirty days

Cl*+ & proposes to amend section &% of the Act to enable the Authority

to re0iew the re4uirements for registration of public benefit organizations

Cl*+ ' proposes to amend section && of the Act to increase the number of

Kenyan directors in international organizations registered under the Act to

be two thirds !his is to encourage local ownership 5urther it proposes toremo0e the e3emptions gi0en to international organizations applying to be

registered as public benefits organizations

Cl*+ 10 proposes to correct the marginal note to section &$ of the Act

6




Cl*+ 11 proposes to amend section $) of the Act by deleting the word

+Authority and substituting it with the word +5ederation ?t is the role of

the 5ederation and not that of the Authority to encourage umbrella

associations to underta2e self-regulation

Cl*+ 12 proposes to amend section $6 of the Act to limit the financing

by public benefits organizations by foreign donors !his is to ensure public

benefits organizations organization carry out acti0ities that are supported

by Kenyans and thereby preser0ing the national agenda ?t further proposes

to ha0e the accounts of public benefits organizations to be audited by the

Auditor-7eneral

Cl*+ 1" proposes to amend section *& of the Act to reduce the time

within which public benefits organizations submit their annual reports to

the Authority

Cl*+ 14 proposes to amend section ** of the Act to ensure that public

benefits organizations are not e3empt from liability arising out of actions

or inactions of members of their go0erning bodies

Cl*+ 1# proposes to amend section */ by deleting the words +rendered

distinguished ser0ice and substituting and with the word +2nowledge and

e3perience 5urther it proposes to pro0ide for the appointment of the

.hairperson to the Board of the Authority to be by the President

Cl*+ 1$ proposes to repeal section *) of the Act Appointment of the

.hairperson and members of the Board of the Authority by gazette noticeis sufficient and they need not ta2e an oath or affirmation of office before

the .hief <ustice thus the need to repeal the section

Cl*+ 1% proposes to amend section '& of the Act by pro0iding that the

procedure to appoint a member to the Board of the Authority when a

0acancy occurs to be those pro0ided by the Act !he current pro0ision

creates confusions, as the pro0ision for appointment is already pro0ided

for under section */ of the Act

Cl*+ 1& proposes to amend section '$ of the Act by including

classification of public benefits organizations as part of the functions of the Authority

Cl*+ 1' proposes to amend section '1 of the Act by pro0iding for

appointment of such number of ;eputy ;irectors as may be re4uired !he

&%




purpose of the amendment is to gi0e freedom for a fle3ible organizational

structure

Cl*+ 20 proposes to amend section /% of the Act to increase the tenure of members of the tribunal from three to fi0e years and to allow for their

reappointment !he proposed amendment further see2s to pro0ide for the

membership to the tribunal to be on a part time basis !he amendment also

proposes to ha0e appointment of the member to be by the rele0ant .abinet

Secretary upon the recommendation by the <udicial Ser0ice .ommission

!he <udicial Ser0ice .ommission is best suited body to competiti0ely

recruit and subse4uently recommend indi0iduals to ser0e in the !ribunal

Cl*+ 21 proposes to amend section /$ of the Act in order to bring it into

conformity with the .onstitution by remo0ing the limitation on the right to

appeal the decision of the >igh .ourt

Cl*+ 22 proposes to amend section 11 of the Act by deleting subsection

"'# which ma2es it mandatory for the 7o0ernment to engage public

benefits organizations in all matters of de0elopment !his engagement is

not clear if it is public participation as en0isioned in the .onstitution

Cl*+ 2" proposes to repeal section 1= of the Act !he public benefits

organizations ha0e a representation at the Board of Authority and their

officials ha0e a right to contribute at 0arious public participation for a thus

the current pro0ision would place an enormous burden on the 7o0ernment

to engage public benefits organizations in policy decision ma2ing issues in

e0ery Dinistry

Cl*+ 24 proposes to amend section 1)of the Act by the inclusion of the

Authority in the process of application for entry permits by employees of

public benefits organizations !he Authority, being the regulator of public

benefits organizations, is best placed to consider application by such

employees and thereafter forward recommendations to the Principal

?mmigration Officer !

Cl*+ 2# proposes to amend section 16 of the Act to enable the .abinet

Secretary to initiate theregulation ma2ing process 5urther it proposes to

delete subsection "$# as it is not clear which right is being limited and the 8ustification for the limitation Subsection "*# is also proposed to be

deleted as the practice is to gi0e notice of impending operationalization of

regulations to allow compliance and not to gi0e immunity before

regulations ha0e not been contemplated

&&




Cl*+ 2$ proposes to delete the second schedule to the Act as the ta3

brea2s, incenti0es and preferential treatment proposed under the schedule

cannot be applied across the board to public benefits organizations !hey

must be in conformity with the go0ernmentFs ta3 and fiscal policy ?t proposes to pro0ide for new schedule which pro0ides for the classification

of public benefit organizations

Cl*+ 2% proposes to repeal the third schedule as the procedure for

appointment to the Board of the Authority is already stipulated under

section */ of the Act

Cl*+ 2& proposes to amend paragraph 6 of the 5ifth Schedule to the Act

by pro0iding for the conduct of election of the members to the go0erning

board of the 5ederation

!he Bill does not contain any pro0isions limiting any fundamental rights

or freedom

!he Bill does not affect the functions of .ounty go0ernments as set out in

the 5ourth Schedule to the .onstitution and is therefore not a Bill

concerning counties

!he enactment of this Bill willnot occasion additional e3penditure of

public funds

;ated the , $%&'

MOSES -URIA,

ember of Parliament!

Section 2 which it is proposed to amend

?nterpretation

2! "&# ?n this Act, unless the conte3t otherwise re4uires—

&$




GAuthorityG means the Public Benefit Organizations :egulatory Authority

established under section *'

Gauthorized agentG means a legal representati0e, who is a Kenyan citizen,authorized to recei0e official summonses, notices and in4uiries on behalf

of an international non-go0ernmental organization

GBoardG means the Board of the Authority established under section */

G.abinet SecretaryG means the .abinet Secretary for the time being

responsible for matters relating to planning and national de0elopment

G5ederationG means the (ational 5ederation of Public Benefit

Organizations established under section $&

Ginternational non-go0ernmental organizationG means a non-go0ernmental

organization with its original registration being in a country other than

Kenya and operating in Kenya under a certificate of registration issued

under section &% of this Act

Gpublic benefit acti0ityG means an acti0ity that supports or promotes public

benefit by enhancing or promoting the economic, en0ironmental, social or

cultural de0elopment or protecting the en0ironment or lobbying or

ad0ocating on issues of general public interest or the interest or well-being

of the general public or a category of indi0iduals or organizations

GregisterG means the register 2ept by the Authority pursuant to section &/

and

G!ribunalG means the Public Benefit Organizations ;isputes !ribunal

established under section /%


Ob8ects and purposes of the Act"! !he ob8ects and purposes of this Act are to—

"a# encourage and support public benefit organisations in their

contribution to meeting the di0erse needs of the people of Kenya

by—

&*




"i# creating a conduci0e en0ironment for the growth of the

public benefit organizations sector and for the operations

of the registered public benefit organizations"ii# establishing an administrati0e and regulatory framewor2

within which public benefit organisations can conduct their

affairs

"iii# encouraging public benefit organisations to maintain high

standards of go0ernance, transparency and accountability

and to impro0e those standards

"i0# creating an en0ironment within which the public may ha0e

access to information concerning registered public benefit

organisations and

"0# promoting a spirit of co- operation and shared

responsibility within go0ernment and among donors andother interested persons in their dealings with public

benefit organisations

"b#gi0e meaningful protection to the internationally recognized

freedoms of e3pression, association, and peaceful assembly

"c# promote the de0elopment of self- regulation among public

benefit organizations

"d# promote compliance by public benefitorganisations with their legal obligations to e3ercise effecti0e control and management o0er

the administration of their acti0ities and funding

"e# facilitate a constructi0e and principled collaboration between

public benefit organisations, the 7o0ernment, business, donors and

other actors in order to ad0ance public interest

"f# pro0ide registration procedures, which are transparent, and

which will facilitate establishment of public benefit organizations

while safeguarding freedom of association

"g# facilitate mechanisms for go0ernment collaboration with public

benefit organizations, including funding of public benefit

organizations acti0ities and in0ol0ement of public benefit

organizations in the implementation of go0ernment pro8ects

&'




"h# facilitate the establishment and growth of public benefit

organizations in order to generally strengthen ci0il society, promote

social welfare and impro0e the conditions and 4uality of life for the

people of Kenya


7o0ernments responsibility to public benefit organizations

4!"&#.onsistent with its obligation to respect the freedoms of association

and assembly, it is the duty of the 7o0ernment to pro0ide an enabling

en0ironment for public benefit organizations to be established and to

operate

"$# 90ery State organ shall determine and co-ordinate the implementation

of its policies and measures in a manner designed to promote, support and

pro0ide an enabling en0ironment for public benefit organizations to perform their functions

"*# !he 7o0ernment and all public benefit organizations shall comply with

the principles for effecti0e collaboration set out in the 5irst Schedule


Deaning of public benefit

#! "&# ?n this Act, Gpublic benefit organizationG means public benefit a

0oluntary membership or non-membership grouping ofindi0iduals or

organizations, which is autonomous, non- organization partisan, non- profit ma2ing and which is-

"a# organized and operated locally, nationally or internationally

"b# engages in public benefit acti0ities in any of the HAreas set out in

the Si3th Schedule and

"c# is registered as such by the Authority

"$# 5or greater certainty, a public benefit organization does not include-

"a# a trade union within the meaning of the abour :elations Act,

$%%=

"b# a public body established by or under any written law

&/




"c# a political party within the meaning of the Political Parties Act,

$%%=

"d# a religious organization which is primarily de0oted to religious

teaching or worship"e# a society within the meaning of the Societies Act

"f# a co-operati0e society within the meaning of the .o-operati0e

Societies Act

"g# a Sacco society within the meaning of the Sacco Societies Act

"h# a micro-fmance institution within the meaning of the Dicro-

5inance ?nstitutions Act

"i# a community based organization whose ob8ecti0e include the direct benefit of its members


:e4uirements for registration

&! "&# An application for registration under this Act shall be made to the

Authority

"$# An application for registration shall be accompanied by—

"a# a copy of the constitution or other constituti0e document of the public

benefit organization

"b# names and addresses of the founders of the public benefit organization

"c# the public benefit purposes for which the public benefit organization is

organized and operated and all of the principal acti0ities that the public

benefit organization shall engage in

"d# the postal and physical address of the principal place of doing business

of the public benefit organization

"e# the prescribed fee and

&1




"f# such other particulars or information as may be re4uired by the

Authority in order to assist the Authority to determine whether or not the

organization meets the re4uirements for registration under this Act

"*# An international non-go0ernmental organization may register as a

public benefit organization by filing the following documentation—

"a# an application form

"b# proof that it is a legal entity in another country

"c# the organizationHs address in Kenya and

"d# a written statement from a representati0e of the organizationHs

head4uarters with authority to pro0ide such statement stating—

"i# the purposes of the international non- go0ernmental organization

"ii# a general description of the acti0ities that the international non-

go0ernmental organization is planning to carry out in Kenya and

"iii# the name, address and other contact information of the authorized

agent

"'# !he constitution of a public benefit organization that intends to register

shall—

"a# state—"i# the organizationHs name

"ii# the ob8ecti0es of the organization

"iii# that participation in and membership of the public benefit organization

shall be0oluntary

"i0# that the organizationHs income and property are not distributable to

any person, e3cept as reimbursement of reasonable e3penses or payment

of reasonable compensation for ser0ices rendered

"b# ma2e pro0ision for the organization to be a body corporate and ha0e an

identity and e3istence distinct from its members or go0erning body

"c# ensure that the members or go0erning body ha0e no rights in the

property or other assets of the organization solely by 0irtue of their being

members or the go0erning body

&=




"d# specify the organizational structures and mechanisms for its

go0ernance

"e# pro0ide for a go0erning body consisting of not less than fi0e persons,three of whom shall not be related to each other

"f# in the case of international non- go0ernmental organizations, specify

the authorized agent, being a Kenyan citizen, retained by the organization,

upon whom official notices, summonses and other process may be ser0ed

"g# set out the rules for con0ening and conducting meetings, including

4uorums re4uired for and the minutes to be 2ept of those meetings

"h# determine the manner in which decisions are to be made

"i# pro0ide that the organizationHs financial transactions shall be conducted

by means of a ban2ing account

body may be remo0ed from office and pro0ide for appeals against such

remo0al and specify procedures for those appeals and determine a body to

which those appeals can be made

"8# pro0ision that members of its, go0erning body are not personally liable

for any loss suffered by any person as a result of an act or omission which

occurs in good faith while the office-bearer is performing functions for or

on behalf of the organization

"8# determine the financial year of the organization

"2# set out a procedure for changing the constitution

"&# set out a procedure by which the organization may be wound up or

dissol0ed and

&)




"m# pro0ide that, when the organization is being wound up or

dissol0ed, any asset remaining after all its liabilities ha0e been met,

shall be transferred to another public benefit organization ha0ing

similar ob8ecti0es, which shall be identified through a resolution of the go0erning body of the organization being wound up or

dissol0ed otherwise, the Authority shall ma2e this decision

"/# !he constitution of a membership organization that intends to

register as a public benefit organization may ma2e pro0ision for

matters rele0ant to conducting its affairs, including the following—

"a# 4ualifications for and admission to membership of the

organization

"b# circumstances in which a member shall no longer be entitled tothe benefits of membership

"c# termination of membership

"d# appeals against loss of the benefits of membership or against

termination of membership and specify the procedure for those

appeals and determine the body to which those appeals may be

made

"e# membership fees and other payments by members

"f# pro0ision that e3cept for pro0en gross negligence or criminal

malfeasance, members or the go0erning body do not become liable

for any of the obligations and liabilities of the organization solely

by 0irtue of their status as members or the go0erning body

"g# appointment of the go0erning body and their respecti0e

functions

"h# procedure for nominating, electing or appointing the go0erning

body and their powers and functions

"i# circumstances and manner in which members of the go0erning

"2# ma2ing of in0estments

"&# pro0isions for a0oiding conflict of interest and dealing with it

where it arises

"m# the purposes for which the funds of the organization may be

used and

&6




"n# ac4uiring and controlling of assets

"1# Sub8ect to subsections "'# and "/#, the go0erning body of a public benefit organization shall adopt such by-laws or rules as may

be necessary to enable it to perform its functions and e3ercise its

powers

"=# !he go0erning body of a public benefit organization shall not

delegate—

"a# its duties to re0iew and appro0e the assets, liabilities, income,

e3penditures, and programs of the public benefit organization for

the past year and the anticipated assets,liabilities, income,

e3penditures and programs for the upcoming year

"b# the selection of its members

"c# the process by which its constitution or other founding

instrument can be amended or

"d# decisions to deregister, dissol0e, or wind-up the public benefit

organization

")# A public benefit organization shall notify the Authority of any changein the particulars submitted under subsection "$# or "*# within si3ty days of

occurrence


.ertificate of registration

&% "&# @pon registering a public benefit organization, registration the

Authority shall issue a certificate of registration in the prescribed form

"$# A certificate of registration shall be a conclusi0e e0idence of the

authority to operate throughout Kenya as specified in the constitution of

the public benefit organization or in the certificate of registration

$%




"*# A registered public benefit organization shall by 0irtue of such

registration be a body corporate with perpetual succession capable, in its

name, of—

"a# suing and being sued

"b# ta2ing, purchasing or otherwise ac4uiring, holding, charging or

disposing of mo0able and immo0able property

"c# entering into contracts and

"d# doing or performing all such other things or acts necessary for proper

performance of its functions under this Act, which may lawfully be done

or performed by a body corporate

"'# A public benefit organization which has been registered retains its

registration until—

"a# its registration is cancelled under this Act

"b# the organization is 0oluntarily deregistered or

"c# the organization is wound-up or dissol0ed


11! "&#An organization which is registered outside ?nternational Kenya and

which intends to operate in Kenya shall apply to organizations the

Authority for a certificate to operate in Kenya

"$# !he Authority shall ta2e any of the following actions on an application

made under subsection "&# —

"a# e3empt the organization from registration, and instead grant that

organization a permit to operate in Kenya, if that organization does not

intend to directly implement any acti0ities or programmes in Kenya or operate from Kenya to implement any acti0ities or programmes in another

country

"b# re4uire the organization to apply for registration as an international

organization, if that organization intends to directly implement any

$&




acti0ities or programmes in Kenya or operate from Kenya to implement

any acti0ities or programmes in another country

"*# !he Authority shall not e3empt an organization from registration under subsection "$#"a# if that organization intends to —

"a# engage in direct implementation of any acti0ity or program in Kenya or

operate from Kenya to implement any acti0ities or programs in another

country

"b# raise any subscriptions or engage in any other form of raising of funds

in Kenya

"'# !he Authority shall re4uire an organization that applies for registration

pursuant to subsection "$# "b# to undergo the same registration procedures,and satisfy such application re4uirements, as may be pro0ided for in the

regulations

"/# An organization registered pursuant to an application made under

subsection "$#"b# shall be re4uired by the Authority to —

"a# ha0e at least one third of its directors who are Kenyan citizens and who

are resident in Kenya and

"b# maintain an office in Kenya

"1# :egulations shall pro0ide for the regulation of organizations issued

with a permit to operate in Kenya under subsection "$# "a#


Presumption of registration

12! ?f, upon the e3piry of si3ty days from the date a public benefit

organization made an application for registration under section 6"&#, no

decision has been made by the Authority, the public benefit organization

may apply to the !ribunal for an order re4uiring the Authority to issue to it

a certificate of registration or communicate to the organization that theregistration has been refused, together with the reasons therefor


Promotion of self-regulation

$$




$)"&# !he Authority shall encourage umbrella associations for public

benefit organizations to de0elop and publish codes of conduct applicable

to members, go0erning body officials, staff and 0olunteers of the public

benefit organizations

"$# !he Authority shall facilitate training on self-regulation of public

benefit organization to deepen the 2nowledge and strengthen the capacity

of public benefit organizations for self-regulation


5iscal transparency

2'! 90ery public benefit organization registered under this Act shall—

"a# implement internal accounting and administrati0e procedures

necessary to ensure the transparent and proper use of its financial and other resources

"b# utilise its financial and other resources for the attainment of its aims,

ob8ects and purposes


Annual report

"1! Iithin si3 months after the end of each financial year, e0ery public

benefit organisation registered under this Act shall cause to be made and

submitted to the Authority—

"a# a statement of its accounts audited in accordance with section *% "$#

abo0e

"b# a certified copy of its financial statements

"c# a report dealing generally with the programme of acti0ities of the

public benefit organization during that financial year

Section 33 which it is proposed to amend Protection from personal liability

""! (o member of any go0erning body of a public benefit organization

shall be held personally liable for any act done in good faith on behalf of

the organization, or by 0irtue of the office held in the go0erning body

$*





.omposition of Board of the Authority, etc

"#! "&# !here shall be a Board of the Authority which shall consist of—

"a# the chairperson appointed by the .abinet Secretary

"b# three members, at least one of whom shall be of different gender from

the other two, who ha0e rendered distinguished ser0ice in the ci0il society,

appointed by the .abinet Secretary

"c# the Principal Secretary in the ministry responsible for matters relating

to public benefit organizations

"d# the Principal Secretary in the ministry responsible for matters relating

to finance

"e# the Principal Secretary in the ministry responsible for matters relating

to foreign affairs

"f# the Attorney-7eneral

"g# one public officer representing the Principal Secretary responsible for

such departments as the Authority shall determine

"h# the chairperson of the go0erning board of the 5ederation

"i# two members of the go0erning board of the federation, being one

woman and one man, nominated by the members of the go0erning board

of the 5ederation and appointed by the .abinet Secretary and

"8# the ;irector

"$# (o person may be appointed as chairperson of the Board unless that

person possesses at least ten yearsH e3perience, in matters relating to ci0il

society

"*# (o person shall be eligible for appointment under subsection "&# "b# or nomination under subsection "&# "g# unless such person has at least ten

yearsH e3perience in the public benefit organizationsH sector

$'




"'# A person appointed as chairperson or member of the Board shall before

ta2ing office relin4uish any directorship or employment in a public benefit

organization that that person may ha0e held before the appointment

"/# A member of the Board, other than an ex- officio member, may resign

from office by a letter addressed to the .abinet Secretary

"1# !he Board may co-opt such number of persons not e3ceeding three to

bring such e3pertise to the Board as the Board may re4uire for the better

discharge of its functions

"=# Persons co-opted under subsection "1# shall ha0e no right to 0ote on

any matter at a meeting of the Board

")# !he .abinet Secretary shall prescribe rules for the nomination of themembers contemplated under subsection "&#


Oath of office

"&! !he chairperson, the members of the Board of the Authority and the

;irector shall each ma2e and subscribe to a prescribed oath or affirmation

of office before the .hief <ustice

Section 41which it is proposed to amend

5illing of0acancy41! "&# Ihere a 0acancy occurs in the Board as a result of death, disability,

resignation or remo0al of a member of the Board, the .abinet Secretary

shall appoint a replacement from among the short listed persons

considered by the (ational Assembly in accordance with the !hird

Schedule

"$# A person who is appointed in place of a member of the Board whose

office has become 0acant under this section shall hold office for the

remainder of the term of office of that member of the Board

Section 46 which it is proposed to amend Staff of the Authority

4$! "&# !he Board shall appoint a ;eputy ;irector and such officers and

other staff as are necessary for the proper discharge of the functions of the

Authority under this Act, upon such terms and conditions of ser0ice as it

may determine

$/




"$# ?n appointing officers and staff under subsection "&#, the Board shall

ha0e regard to gender e4uity and regional balance


9stablishment of the !ribunal

#0! "&# !here is hereby established a tribunal to be t 2nown as the Public

Benefit Organizations ;isputes !ribunal which shall consist of members

appointed by the .hief <ustice and appro0ed by the (ational Assembly, as

follows—

"a# a chairperson who shall be an ad0ocate of the >igh .ourt of not less

than se0en years standing

"b# two ad0ocates of the >igh .ourt of not less than fi0e years standing

"c# two persons ha0ing such specialized s2ill or 2nowledge necessary for

the discharge of the functions of the !ribunal

"$# (ot more than two-thirds of the persons appointed under subsection "&#

shall be from one gender

"*# A member or staff of the Authority shall not ser0e as a member of the

!ribunal

"'# !he 4uorum for a meeting of the !ribunal shall be the chairperson and

two other members

"/# !here shall be paid to the members of the !ribunal such remuneration

and allowances as the Authority may, in consultation with the Salaries and

:emuneration .ommission, determine

"1# !he office of a member of the !ribunal shall become 0acant—

"a# at the e3piration of three years from the date of his appointment

"b# if the member ceases by any reason to be an ad0ocate as referred to insubsection "&#

"c# if the member is remo0ed from membership of the !ribunal by the

.hief <ustice for failure to discharge the functions of office "whether

$1




arising from infirmity of body or mind or from any other cause# or for

misbeha0iour or

"d# if the member resigns


Powers of the !ribunal

#2! "&# On the hearing of a complaint or an appeal, the !ribunal shall ha0e

all the powers of a subordinate court of the first class to summon

witnesses, to ta2e e0idence upon oath or affirmation and to call for the

production of boo2s and other documents

"$# Ihere the !ribunal considers it desirable for the purpose of

minimizing e3pense or a0oiding delay or for any other special reason, it

may recei0e e0idence by affida0it and administer interrogatories andre4uire the person to whom the interrogatories are administered to ma2e a

full and true reply to the interrogatories within the time specified by the

!ribunal

"*# ?n its determination of any matter, the !ribunal may ta2e into

consideration any e0idence which it considers rele0ant to the sub8ect of the

matter before it, notwithstanding that the e0idence would not otherwise be

admissible under the 90idence Act

"'# !he !ribunal shall ha0e power to summon e3pert e0idence as may benecessary for the discharge of its functions under this Act

"/# !he !ribunal shall ha0e power to award the costs of any proceedings

before it and to direct that costs shall be ta3ed in accordance with any scale

prescribed for suits in the >igh .ourt or to award a specific sum as costs

"1# All summonses, notices or other documents issued under the hand of

the chairperson of the !ribunal shall be deemed to be issued by the

!ribunal

"=# @pon any complaint or appeal being made to the !ribunal under this

Act, the !ribunal may—

"a# confirm, set aside, 0ary or 4uash the order or decision in 4uestion

"b# re4uire the Authority to re0ise or re0iew its decision

$=




"c# re4uire the Authority to in4uire into specific details from the appellant

and ma2e further consideration of the application or

"d# ma2e such other order as may be appropriate in the circumstances

")# Iithout pre8udice to the generality of subsection "=# "b#, the !ribunal

may ma2e an order for the maintenance of the status 4uo of any matter or

acti0ity which is the sub8ect of the complaint or appeal until the complaint

or appeal is determined

"6# Any interested party may be represented before the !ribunal by an

ad0ocate or by any other person whom the !ribunal may, in its discretion,

admit to be heard on behalf of the party

"&%# A decision made by the !ribunal shall be final and binding on the parties unless 8udicial re0iew thereof commences within fourteen days

from the date of the !ribunalHs decision

"&&# Any party to the re0iew aggrie0ed by the decision of the !ribunal may

appeal to the >igh .ourt and the decision of the >igh .ourt shall be final

"&$# A party to the re0iew which disobeys the decision of the !ribunal or

the >igh .ourt shall be in breach of this Act and any action by such party

contrary to the decision of the !ribunal or the >igh .ourt shall be null and

0oid


Public policy and political acti0ities

11 "&# A public benefit organization may engage freely in research,

education, publication and ad0ocacy with respect to any issue affecting

the public interest, including criticism of the policies or acti0ities of the

state or any officer or organ thereof

"$# A public benefit organization may also e3press its 0iews on any issue

or policy that is or may be debated or discussed in the course of a political

campaign or election

"*# A public benefit organization may not engage in fundraising or

campaigning to support or oppose any political party or candidate for

$)




appointi0e or electi0e public office, nor may it propose or register

candidates for electi0e public office

"'# !he go0ernment shall engage with public benefit organizations on allmatters of de0elopment and shall in0ite them to participate in policy

ma2ing


?n0ol0ement by 7o0ernment

$%! !he 7o0ernment shall in0ol0e public benefit ?n0ol0ement by

organizations in policy decision ma2ing on issues affecting 7o0ernment

them, particularly at the local le0els, and e0ery ministry shall designate

officers who shall deal with matters relating to public benefit

organizations, and wor2 closely with each other and with the Authority


9ntry permits

$&! Any registered public benefit organization 9ntry permits wishing to

obtain entry permits in respect of prospecti0e employees shall, where—

"a# the ser0ices of such employees are necessary for the proper function of

the organization

"b# no persons with comparable s2ills are a0ailable locally or

"c# such employees shall contribute towards the training of Kenyans to

obtain scientific, technical and managerial s2ills, apply in writing to the

Principal ?mmigration Officer for the issuance of the re4uired permits in

accordance with the pro0isions of the ?mmigration Act .ap &=*


:egulations

$'! "&# !he .abinet Secretary may, on the :egulations recommendations

of the Authority, ma2e regulations generally for the better carrying into

effect of the pro0isions of this Act

"$# Any condition, restriction or prohibition contained in :egulations made

under subsection "&# shall be proportionate to the ob8ects of those

:egulations and shall limit the rights of persons and bodies as little as is

reasonably possible

$6




"*# ?f a failure to comply with a condition, restriction or prohibition

contained in :egulations under this Act is an offence, the :egulations shall

pro0ide that, to the e3tentpracticable, before being sub8ected to criminal

liability, the affected person shall be gi0en notice of the offence and areasonable opportunity to comply with the :egulations

"'# Before ma2ing :egulations under this section, the .abinet Secretary

shall, unless public interest re4uires that the :egulations be made without

delay, comply with the following—

"a# the intention to ma2e :egulations shall be announced by notice in the

7azette and in at least two daily newspapers of national circulation

specifying—

"i# that draft :egulations ha0e been de0eloped for comments

"ii# the place where a copy of the draft :egulations may be obtained

"b# a period of at least one month from the date of the notice shall be

allowed for interested parties to comment on the draft :egulations

"c# comments recei0ed on the draft :egulations shall be considered before

ma2ing the :egulations

Second Schedule of the ct which it is proposed to amend

S9.O(; S.>9;@9

"s1#

B9(95?!S O5 :97?S!:A!?O(

&?ndirect go0ernment support in the form of—

"a#e3emptions from—

"i# income ta3 on income recei0ed from membership subscriptions

and any donations or grants

*%




"ii# income ta3 on income ac4uired from the acti0e conduct of

income producing acti0ities if the income is wholly used to support

the public benefit purposes for which the organization was

established

"iii# ta3 on interest and di0idends on in0estments and gains earned

on assets or the sale of assets

"i0# stamp duty and

"0# court fees

"b# preferential treatment under 0alue added ta3 "CA!#, and customs duties

in relation to imported goods or ser0ices that are used to further their

public benefit purposes

"c# incenti0es for donations by legal and natural persons

"d# employment ta3 preferences and

"e# special ta3 incenti0es for donations to form endowments, prudent

in0estment policies, etc

$ Pro0ision of direct go0ernment financing for public benefit

organizations that partner with the go0ernment, 0ia budget subsidies,grants for specific purposes, and contracts to perform certain wor2

* Preferential treatment in public procurement procedures and bidding for

contracts

' Pro0ision of information to enable public benefit organizations to

contribute effecti0ely to the policy processes

/ Access to training courses that are rele0ant to public benefit

organizations and offered by go0ernment institutions

*&




!hird Schedule of the ct which it is proposed to amend

!>?:; S.>9;@9

"s '&#P:O.9;@:9 5O: (OD?(A!?(7 D9DB9:S O5 !>9 BOA:; O5

!>9 A@!>O:?!J

&!he .abinet Secretary shall, within fourteen days of the commencement

of this Act, by ad0ertisement in the 7azette and in at least three daily

newspapers of national circulation, declare 0acancies and in0ite

applications from persons 4ualified under this Act for nomination as

members of the Board

$An application under paragraph & shall be forwarded to the Permanent

Secretary of the Dinistry for the time being responsible for planning and

national de0elopment within fourteen days of the ad0ertisement and may be made by —

"a# any 4ualified person or

"b# any person, organization or group of persons proposing the

nomination of any 4ualified person

*!he names of all applicants under paragraph & shall be published in the

7azette

'!he .abinet Secretary shall, within se0en days of the e3piry of the

period prescribed under paragraph &, con0ene a committee comprising of

representati0es of a broad spectrum of public benefit organizations for the

purposes of considering the applications, inter0iewing and short listing

twel0e persons 4ualified for appointment as members of the Board

/!he committee shall ran2 and pro0ide comments regarding each of the

finalists to the .abinet Secretary

1 !he .abinet Secretary shall, within se0en days of the e3piry of the

period pro0ided for in paragraph ', forward the shortlisted names to the

(ational Assembly

= !he (ational Assembly shall, within fourteen days of the receipt of

names under paragraph 1, through an open and consultati0e 0etting

process, consider all nominations and appro0e the names of si3 nominees

for appointment as members of the Board

*$




) @pon consideration and appro0al by the (ational Assembly, the .ler2

of the (ational Assembly shall within se0en days forward the names of the

appro0ed persons to the .abinet Secretary for appointment

6 Ihere the (ational Assembly fails to appro0e the minimum number of

nominees re4uired, the .ler2 of the (ational Assembly shall within three

days of the decision communicate the names of the appro0ed nominees

and those of the re8ected nominees to the .abinet Secretary for the

submission by the .abinet Secretary, within se0en days, of fresh

nominations in respect of the re8ected candidates

&& @pon receipt of the names of the nominees, the .abinet Secretary

shall, by notice in the 7azette, appoint the appro0ed persons as members

of the Board

&%?n nominating or appointing persons as members of the Board,the

(ational Assembly and the .abinet Secretary shall ha0e regard to gender

e4uity and regional balance

**

the public benefits (amendment) bill,2014

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