NGO Officials Cannot Seek Refuge in a  Constitution That They Have Violated – High Court Rules

The  recent ruling by the High Court in NGOs Coordination Board v Republic Ex Parte Internally Displaced Persons Support Initiative (IDIPIS) &  Another |2021| eKLR raised an important issue regarding the importance of an NGO constitutive document which NGO officials should take note of  http://kenyalaw.org/caselaw/cases/view/229017/

The ruling affirmed the courts’ position, influenced by the doctrine of separation of powers, that it would not in judicial review proceedings try to determine the correctness of a decision made by a public body exercising administrative discretion. Consequently, the court would limit itself to determining whether the administrator (in this case the NGOs Coordination   Board) acted within its power, the process was procedurally fair, and the decision was not irrational. Concerning irrationality, it has been held that the court would only intervene if an administrative decision were of such gross unreasonableness as to suggest bad faith, incompetence, or ulterior motive.

We do not intend, however, to focus per se on the findings of the court regarding the judicial review application but rather, we wish to give prominence to the assertion by the court that one was unlikely to successfully obtain relief from the court while citing the provisions of an NGOs constitution that he or she has failed to follow. The ruling is particularly important given that many officials of NGOs in Kenya are either not familiar with the constitutions of their organisation or choose not to adhere to their provisions in their governance decisions.

Facts of the Case

The facts are as follows. A former chairperson of the NGO, Internally Displaced Persons Support Initiative (IDIPIS), was aggrieved by the decision of the NGOs Coordination Board to approve an application by the membership of the organisation to remove him and others as officials of the organisation. He argued that the NGOs Board had in its decision failed to consider that there had been no meeting to effect such a decision since no notice was issued as per the NGOs constitution and that second, the individuals who had purportedly removed him and his fellow officials were not members of the NGO and that third,  that the NGOs Board had not given the applicants a hearing and that as a consequence the decision by the NGOs Board was null and void. Therefore, the applicant as part of his prayers asked the court to quash the NGOs Coordination Board’s notification of change of officials and further compel the NGOs Board to reinstate the officials who had been removed.

In response, the NGOs Board which was the respondent argued that it had acted justly, fairly, and reasonably following the law and per the NGOs constitution which provided that the membership was the supreme governance organ and that the said constitution prescribed the procedure for removing board members which it had satisfied itself as having been followed. The NGOs Board further noted that the former officials had failed to follow the provisions of their constitution, had failed to make full disclosure to the court and wanted to drag it (the court) into a matter that was purely a members’ affair.

Failure to Observe the Constitution of the NGO

Ultimately, while NGO officials may seek legal redress if their rights as prescribed in their constitution are violated, they will be hard-pressed to succeed if they violate the same constitution.aving largely dispensed with the merits of the applicant’s judicial review application as already stated above, the court noted that the NGO was already in contravention of its constitution since it had not held elections since it was founded. Consequently, by asking the court to reinstate them into office the applicants were in effect asking the court to perpetuate illegality since they had no right to be in office in the first place. Put differently, the request was moot since the individuals had ceased to be in office from the moment, they failed to conduct elections as required by their constitution. As the court pointed out, to reinstate the former officeholders of IDIPIS would be to aid it in contravening the very constitution that establishes and binds it. The applicant the court opined, was seeking to invoke the constitution he chose to live by ignoring for more than ten years. Ultimately, therefore, the applicants’ case was always doomed to fail irrespective of any other merits it might have had precisely because having failed to hold elections as prescribed by the IDIPIS Constitution, the former officials were wrongly in office and as such their seeking reinstatement was asking the court to engage in a nullity since they had no claimable right.

Henry Ochido is the Managing Consultant of Development Frontiers

hochido@developmentfrontiers.org                                    March 2022