The High Court has declared the Community Groups Registration Act unconstitutional for lacking adequate public participation.
Justice Lawrence Mugambi found that Parliament only received and considered feedback from state actors.
The court held that the constitutional threshold for public participation in the legislative process was not met and as such declared the Act unconstitutional.
The case was instituted by Katiba Institute, a co-petitioner that also represented the Mathare Social Justice Centre, a grassroots organisation.
The petition challenged the Community Groups Registration Act, 2022, and contended that the government “utilises vague language within the Community Groups Registration Act to actively intimidate grassroots community-based organisations (CBOs) and human rights defenders.”
Human rights defenders had challenged the Act for shrinking civic space and violating the constitution. Grassroots activists identified several critical defects.
They argued that officers used vague statutory language to refuse registration to human rights and police accountability groups, claiming their work did not qualify as community welfare, which amounted to arbitrary refusals.
The law also gave state officials unchecked power to register, audit or deregister community-based organisations, creating excessive executive control.
They held that such regulation directly undermined the Article 36 right to freedom of association.
In addition, unclear financial oversight and the absence of transition clauses imposed onerous burdens that exposed small mutual-aid groups to harassment.
They also resisted using Article 119 as an administrative prerequisite before seeking constitutional redress from the courts.
Specifically, they countered arguments that petitioners must first exhaust internal Parliamentary remedies—such as petitioning Parliament under Article 119 to repeal or amend a defective law—before taking the matter to court. Katiba maintained that Article 119 is not meant to serve as a jurisdictional bar or administrative roadblock that strips citizens of their fundamental right to directly challenge unconstitutional legislation or legislative processes in court under Articles 22 and 258.
On the challenge of legislative vagueness, that the Act’s terms were ambiguous, overbroad and contradictory, the judge ruled in favour of the petitioners.
Justice Mugambi affirmed that deprivations of liberty or property require clear procedural safeguards to guarantee legal certainty.
The court held that any statutory terms failing this standard of clarity violate the constitution and must be voided.
In regard to the adequacy of public participation process used during the enactment of the law, the court ruled that public engagement must be genuine.
“Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.”
On the petitioners’ bid to maintain their right to challenge the constitutionality of the legislative process directly under Articles 22 and 258,the court ruled that procedures like Article 119 do not deprive citizens of their fundamental right to question the constitutionality of an Act of Parliament or legislative action directly before the courts.
Katiba Institute welcomed the outcome. “Justice Mugambi has allowed our Petition challenging the constitutionality of the Community Groups Registration Act, finding that the Act was enacted without meaningful, effective and adequate public participation,” the institute said.
ICJ Kenya also welcomed the judgment.
“Public participation is not a procedural formality. It is a substantive constitutional requirement,” it said. It added: “Community groups and grassroots organisations play a vital role in Kenya’s democracy and in advancing human rights.
We urge the Government and Parliament to respect the judgment and ensure genuine, inclusive and meaningful consultation in any future legislative efforts concerning community groups.”
