Kenya's PBO Act Is Finally in Force After a Decade. Most Organisations Still Cannot Comply.

In 2025, with the PBO Act finally in force and the window to re-register under it closing, I sat with a governance advisor at a Nairobi-based civil society umbrella body and asked her to walk me through what a community-based organisation actually needs to do to register under it. She had helped several dozen organisations attempt it. She pulled up a checklist she had built from the legislation and the regulatory authority's guidance, and we went through it.

Two hours later, I had a different understanding of why so few organisations were ready for the new framework — even though the law behind it had been passed more than a decade earlier.

The checklist had thirty-seven line items. Some were simple: a copy of the national ID for each founding board member, a bank account in the organisation's name, a registered physical address. Others were complex: a constitution whose provisions map, clause by clause, onto the specific requirements of Section 8 of the Act. A conflict of interest policy that is not merely referenced in the constitution but spelled out in sufficient detail to demonstrate it is operative. Minutes from a founding general meeting conducted according to procedures the constitution must itself specify.

Most community-based organisations in Kenya do not have all of this. Many have most of it. Almost none have it in the form the Act requires without some revision. And the revision is not trivial — it requires someone who has read both the existing constitution and the Act carefully enough to identify the specific gaps between them.

This essay is about what the Act actually requires, and about why the gap between those requirements and what a typical organisation has is not a function of bad intent or disengagement. It is a function of the administrative distance between drafting a law and building the infrastructure that makes the law navigable.

It helps to be precise about the timeline, because the timeline is part of the problem. The PBO Act was passed in 2013 — and then sat unimplemented for over a decade, its commencement repeatedly delayed despite a 2016 High Court order to bring it into force. It was finally operationalised on 14 May 2024, repealing the Non-Governmental Organizations Co-ordination Act of 1990 that had governed the sector until then. Organisations registered under the old framework were deemed transitioned but required to apply afresh under the new one within a year. So the compliance obligation most organisations are now scrambling to meet is not old. It is barely more than a year old — even though the law behind it has been on the books for more than a decade.

The Constitutional Requirements in Detail

Section 8 of the PBO Act specifies the minimum contents of a PBO's constitution.¹ I am going to reproduce them here — not abstractly, but as they read when you are an organisation in Eldoret trying to check your own document against them.

An organisation's constitution must include: the name of the organisation and its registered address. A statement of the organisation's public benefit objectives — not a general statement of mission, but a description specific enough to demonstrate that the work falls within the Act's definition of "public benefit activity."² A description of the geographical area of operation. Provisions for membership — criteria for admission, the rights and obligations of members, and procedures for suspension or removal. The composition of the governing board: the number of members, the method of appointment or election, the term lengths, and whether those terms are renewable and how many times.

The constitution must specify the quorum for valid board meetings. It must specify the frequency with which meetings must be held and the procedures by which they are convened.³ It must contain a clause governing conflict of interest: board members must be prohibited from participating in decisions in which they have a personal or financial interest, and the clause must specify how such interests are to be declared and managed.

The financial provisions are specific. The constitution must require that the organisation's accounts be audited annually by a qualified auditor, that the accounts be presented to the governing board, and that financial records be maintained in a manner that allows for inspection on request.⁴ The constitution must contain a clause governing the amendment of the constitution itself — the threshold required, the notice period, and whether certain provisions are protected from amendment by simple majority.

The dissolution clause must specify that on winding up, the assets of the organisation shall revert to another organisation registered under the Act or to a public purpose fund, and not to any member or officer.⁵ An anti-discrimination clause is required. Provisions for the conduct of general meetings — separate from board meetings — are required, including quorum, notice period, and voting procedures.

This is the minimum. Some of these requirements are clear in their terms. Others — the definition of "public benefit activity," the standard for what constitutes a sufficiently specified conflict of interest policy — require interpretive judgment that a non-lawyer may not feel confident exercising.

What a Typical CBO Actually Has

The constitution that a community-based organisation registered under the old Social Services framework holds was, in most cases, drafted using a Ministry of Labour template from the years before the PBO Act came into force in 2024. That template was designed for the NGO Co-ordination Act 1990 framework, which had different and, in several respects, less specific requirements.⁶

These constitutions typically contain: a name and address, an objectives clause, a membership section, and a basic governing board structure. They often contain a dissolution clause, though the asset-reversion language may not match what the PBO Act now requires. They sometimes contain financial accountability provisions. They almost never contain a conflict of interest clause — this was not a standard requirement under the 1990 framework. They often lack the specificity the PBO Act requires in meeting procedures: quorum is named but not always correctly specified, meeting frequency is stated but may not meet the Act's minimums, board term limits are sometimes absent entirely.

The gap between "this organisation has a constitution" and "this organisation has a PBO Act-compliant constitution" is therefore, in most cases, not dramatic in substance — the organisation has most of the right elements — but significant in form. The specific provisions are absent, or present in language too general to satisfy the checklist, or present but buried in provisions that a reviewer cannot easily locate.

And because the organisation cannot tell, without a systematic clause-by-clause check against the Act's requirements, which provisions are missing or insufficient, it cannot fix the problem without either hiring a lawyer to do the check or finding some other mechanism to run it.

The Compliance Cost

I asked the governance advisor how much it typically costs an organisation to get from "we have a constitution" to "we have a PBO Act-compliant constitution" using a lawyer. Her estimate: between sixty and two hundred thousand shillings, depending on how much revision is needed, which law firm is used, and whether the organisation is in Nairobi or in a smaller town where the legal market is thinner.

For an organisation with a monthly operating budget of three hundred thousand shillings — which describes many mid-size CBOs — this is a significant fraction of monthly operations. For an organisation with a budget of fifty thousand shillings — which describes many more — it is several months of operations.

This is not a story about regulatory malice. Nobody designed the compliance requirement to impose a cost this high on small organisations. The cost is an accidental product of the gap between the law's requirements and the infrastructure available to meet them. But accidental or not, the effect is the same: the compliance cost falls most heavily on the organisations that can least afford it, which are often the organisations doing the most necessary work in the most under-resourced contexts.

The Enforcement Question

I want to address a response I sometimes hear to this argument. It runs as follows: the enforcement of the PBO Act has been inconsistent. Many organisations that are not yet compliant have so far operated without consequence. If the cost of non-compliance is low, why is the compliance barrier a problem worth solving?

There are two answers. The first is that the cost of non-compliance is not primarily a legal cost — it is a funding cost. The organisations that cannot demonstrate compliance cannot access the growing category of donor and partnership opportunities that now require it. As I will argue in the essay that follows, this funding cost is growing, not shrinking, as international donors align their due diligence requirements with AML and counter-terrorism financing frameworks that treat non-PBO-registered organisations as higher-risk partners.

The second answer is about the tempo of enforcement. Regulatory enforcement in East Africa has a characteristic pattern: long periods of de facto tolerance followed by sudden, politically-triggered crackdowns that are difficult to predict and fast in their consequences. Tanzania's experience under its NGO Act — culminating in 2018, when a government that had tolerated registration non-compliance for years moved suddenly to deregister nearly 5,000 organisations under a 30-day re-registration directive — is the relevant case study.⁷ The organisations that survived that period were the ones that had treated compliance as infrastructure before it was demanded. The ones that had not had weeks to catch up, and most could not.

The right time to build compliance infrastructure is before it is needed. The essay that follows argues why.