NAIROBI, Kenya — The High Court has declared the Community Groups Registration Act unconstitutional after finding that Parliament failed to undertake meaningful, effective and adequate public participation before enacting the law.
Justice Mugambi allowed a petition challenging the constitutionality of the Act, according to Katiba Institute, which brought the case before the court.
The court found that Parliament had only received and considered feedback from State actors during the legislative process, falling short of the constitutional threshold required for public participation.
Court finds public participation inadequate
According to Katiba Institute, the court determined that the legislative process did not provide sufficient opportunity for meaningful public participation.
The institute said the court found that Parliament’s consideration of views was limited to feedback from State actors and did not satisfy the constitutional requirements governing the enactment of legislation.
The finding formed the basis of the court’s declaration that the Community Groups Registration Act was unconstitutional.
The ruling underscores the constitutional requirement that members of the public be given a meaningful opportunity to participate in the legislative process.
Declaration suspended for six months
Although the court declared the Act unconstitutional, it suspended the declaration of invalidity for six months.
The suspension gives Parliament an opportunity to address the constitutional defect identified by the court.
This means the Act does not immediately become invalid following the ruling.
Parliament has the six-month period to undertake the necessary legislative action and remedy the shortcomings identified by the High Court.
Act could become invalid in February 2027
According to the orders highlighted by Katiba Institute, the declaration of unconstitutionality will take effect if Parliament fails to remedy the defect within the six-month period.
The effective date has been set for midnight on February 10, 2027.
Parliament therefore has until that deadline to address the court’s concerns over public participation and take the necessary steps to cure the constitutional defect.
If no corrective action is taken, the declaration of invalidity will come into force automatically at the specified time.
What the ruling means for Parliament
The decision places the focus on Parliament’s responsibility to ensure that members of the public are meaningfully involved when legislation is being developed and considered.
The court’s finding, as reported by Katiba Institute, indicates that merely receiving views from State institutions is insufficient where the Constitution requires broader public participation.
The six-month suspension also gives lawmakers an opportunity to revisit the legislative process and address the defect without an immediate disruption arising from the Act’s invalidation.
Katiba Institute welcomes ruling
Katiba Institute, which challenged the constitutionality of the Act, welcomed the court’s decision.
The organisation said Justice Mugambi’s ruling vindicated its petition that the legislation had been enacted without meaningful, effective and adequate public participation.
The institute highlighted the three key orders issued by the court: the declaration that the Act is unconstitutional, the six-month suspension of that declaration and the February 10, 2027 deadline for the invalidity to take effect if Parliament does not remedy the defect.
