The Community Groups Registration Act suffered a major setback after the High Court found that Parliament failed to properly involve the public before passing the law.
Justice Lawrence Mugambi ruled in favour of a petition challenging the law, finding that the process used to enact the Act did not meet the constitutional requirement for meaningful and adequate public participation.
According to the court, Parliament received and considered views from State actors but failed to demonstrate that ordinary members of the public were given a genuine opportunity to have their views heard and considered.
The judge therefore declared the Act unconstitutional.
However, the law will not become immediately invalid.
The court has given Parliament six months to go back and correct the constitutional defect.
This means the Act remains in place during the six-month period as Parliament considers how to comply with the court’s decision.
If Parliament does not address the issue within the period granted by the court, the declaration of unconstitutionality will take effect at midnight on February 10, 2027.
The decision has been welcomed by the Defenders Coalition, which said the law had significant implications for human rights defenders working through community groups to promote human rights and freedoms.
In a statement, the coalition urged Parliament to comply with the court’s directive by ensuring that public participation is meaningful and that the views of communities and other stakeholders affected by the legislation are taken into account.
“Effective public participation must be actualised, and the voices of those who will be greatly impacted by this law must be heard and their views taken into consideration,” the coalition said.
The Defenders Coalition reaffirmed its commitment to promoting democratic processes and safeguarding the safety, security and wellbeing of human rights defenders.
The Kenyan Section of the International Commission of Jurists (ICJ Kenya) welcomed the decision declaring the Community Groups Registration Act, 2022 unconstitutional for lack of adequate public participation.
ICJ Kenya said it participated in the case as an interested party alongside Mathare Social Justice Centre (MSJC) and KATIBA Institute, which provided legal leadership and led the arguments.
In a statement, the organisation commended KATIBA Institute for its strategic legal work and congratulated MSJC for pursuing the matter.
ICJ Kenya said it had raised concerns when the Bill that became the Act was published, warning that its framework for the mobilisation, registration, coordination and regulation of community groups could infringe on the freedom of association.
The organisation said those concerns were reinforced when the regulator began questioning the activities of social justice centres, particularly groups documenting human rights violations at the grassroots.
The court, however, did not proceed to determine ICJ Kenya’s argument that the law was overly broad and vague, and therefore violated Article 24 of the Constitution, which requires limitations on rights to be clearly and precisely prescribed by law.
“Community groups occupy a vital space in Kenya’s constitutional democracy. They are often the first responders to injustice, the eyes and ears of communities, and the vehicles through which ordinary citizens exercise their freedoms of association and expression,” ICJ Kenya said.
The organisation said the ruling affirmed that public participation is not merely a procedural formality but a substantive constitutional requirement.
ICJ Kenya urged the Government and Parliament to respect the judgment and ensure genuine and inclusive consultation in any future legislative efforts concerning community groups.
The statement was signed by ICJ Kenya Chairperson Christine Alai.
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