Part I Preliminary
1. Short Title
Clause: The Act is officially named the Public Fundraising Appeals Act, 2024.
2. Interpretation
Clause: This section defines key terms used throughout the Act. These include:
Beneficiary: Refers to any person, group, or cause that is designated to receive funds from a fundraising appeal.
Cabinet Secretary: The government official responsible for planning and social development.
County Executive Committee Member: The official responsible for implementing the Act at the county level.
Fundraising Appeal: Any organized effort to solicit money or benefits from the public for a specific purpose.
National Register: A record maintained by the Cabinet Secretary listing all licensed fundraising entities.
3. Objects
Clause: This section outlines the primary objectives of the Act:
Regulatory Framework: Establish a structured and regulated framework for conducting fundraising appeals
Transparency and Accountability: Ensure transparency and accountability in how fundraising appeals are conducted and how funds are used.
Public Protection: Protect the public from fraudulent, misleading, and coercive fundraising practices.
Standardization: Create a set of standards for entities involved in fundraising, ensuring consistent practices across the board.
Fiscal Incentives: Provide fiscal incentives to encourage donations and voluntary contributions.
Part II Regulation of Fundraising Appeals
4. Functions of the Cabinet Secretary
Clause: The Cabinet Secretary is given broad authority and responsibility for overseeing the implementation of the Act. The specific functions include:
– Collaboration with County Governments: The Cabinet Secretary must work with county executive committee members to ensure the Act is implemented effectively at both national and county levels.
– Issuing Permits: The Cabinet Secretary is responsible for receiving, vetting, and processing applications for permits to conduct public fundraising appeals. This is particularly relevant for national appeals or those involving more than one county.
– Investigating Complaints: The Cabinet Secretary must investigate complaints related to the misuse of funds or any issues concerning fundraising appeals.
– Conducting Inspections and Audits: Regular inspections and audits of fundraising activities are required to ensure compliance with the Act.
– Maintaining a National Register: A record of all individuals and entities licensed to conduct public fundraising appeals must be kept and maintained.
– Promoting Transparency: The Cabinet Secretary is tasked with establishing mechanisms to ensure that fundraising activities are conducted transparently.
– Education and Awareness: There is a duty to educate the public and raise awareness about the proper conduct of fundraising appeals.
– Encouraging Endowment Funds: The Cabinet Secretary should promote the creation of endowment funds and other sustainable income sources for public benefit.
5. Reports of the Cabinet Secretary
Clause: The Cabinet Secretary is required to prepare and submit an annual report to Parliament within three months after the end of each financial year. This report should include:
– A comprehensive statement of the purpose of the appeals.
– Details of the public funds raised.
– The monetary value of all donations received by beneficiaries.
6. Role of County Executive Committee Member
Clause: County Executive Committee members are responsible for the local administration of the Act. Their specific duties include:
–Issuing Permits: Processing applications for permits to conduct public fundraising appeals within their respective counties.
–Regulating Fundraising Appeals: Overseeing the conduct of public fundraising appeals within the county.
–Investigating Complaints: Handling complaints related to fundraising activities at the county level.
Conducting Inspections and Audits: Ensuring that fundraising activities comply with the Act through regular inspections and audits.
Maintaining a County Register: Keeping a record of all permits issued for fundraising appeals within the county.
Monitoring and Evaluation: Continuously monitoring and evaluating fundraising activities to ensure they are conducted properly.
7. Submission of Report to County Assembly
Clause: County Executive Committee members must prepare an annual report on fundraising activities within their counties and submit it to the County Assembly.
Part III Fundraising Appeals
8. Nonapplication to Private Fundraising Appeals
Clause: The provisions of this Part do not apply to private fundraising appeals where the solicitation is made within a beneficiary’s nuclear family or to close relatives and does not extend to the public.
Implications: This clause exempts personal and family driven fundraising efforts from the stringent regulations imposed on public appeals. It respects the privacy and autonomy of individuals raising funds within their immediate social circles, ensuring that such personal matters are not subject to government oversight. This provision acknowledges that not all fundraising activities require formal regulation, especially those of a private nature among close family members.
9. Classification of Fundraising Appeals
Clause: Fundraising appeals are classified into two main categories:
Public Fundraising Appeal: Involves solicitations made to the general public or a section of the public for a public or private benefit.
Private Fundraising Appeal: Involves solicitations made to a specific group of people, such as family members, on behalf of a particular individual or cause.
10. Conduct of Fundraising Appeals
Clause: A person conducts a fundraising appeal if they solicit or receive money or a benefit with the representation that:
The funds are not for personal profit or commercial gain but for a public good or specific cause.
The funds will be used for the benefit of the intended cause or person.
11. Exemptions
Clause: Certain activities are exempt from being classified as fundraising appeals under this Act, including:
-Solicitations related to raffles, lotteries, or activities authorized under the Betting, Lotteries, and Gaming Act.
–Collections made by recognized religious associations for normal religious purposes, such as tithes and offerings
-Membership fees or solicitations related to joining an organization.
–Donations made among a common employer or group for a benevolent purpose directly connected to the members.
–Solicitations from the National Government, county governments, or state agencies.
-Activities prescribed by the Cabinet Secretary as exempt.
12. Persons Who May Conduct a Fundraising Appeal
Clause: Fundraising appeals may only be conducted by:
–Individuals: Any individual may apply to conduct a fundraising appeal.
-Bodies Corporate: Companies or registered entities can conduct appeals.
-Public Collection Entities: Organizations registered as public collection entities under the Act can conduct fundraising appeals for public purposes or on behalf of beneficiaries.
13. State Officers Not to Participate in or Conduct Fundraising Appeals
Clause: Prohibits state officers and appointed public officers from participating in or conducting public fundraising appeals during their term of office. Additionally:
-A person intending to vie for public office is prohibited from participating in a public fundraising appeal within three years preceding a general election.
-Violations result in a fine not exceeding five million shillings and the conduct is deemed an election offense.
Implications: This clause is designed to prevent the use of public fundraising appeals for political gain or influence, maintaining the integrity of public office. By prohibiting state officers from engaging in fundraising activities, the Act seeks to eliminate potential conflicts of interest and reduce the likelihood of public resources or influence being used for personal or political purposes. This also ensures that public fundraising remains focused on genuine charitable or public needs rather than being co opted for political campaigns or personal advancement.
14. Application for a Permit
Clause: Individuals or entities wishing to conduct a public fundraising appeal must apply for a permit at least 14 days before the proposed date of the appeal. The application must include:
-Full names and addresses of the person or entity conducting the appeal.
-The purpose and necessity of the fundraising appeal
-The intended date, place, and duration of the fundraising appeal.
-The names and contact details of persons assisting in the appeal.
-The amount intended to be raised and estimated expenses.
-A declaration of any prior funds received related to the appeal.
-Consent from beneficiaries, if applicable.
15. Urgent Applications
Clause: In cases where there are special circumstances, the Cabinet Secretary or county executive committee member may dispense with the 14 day notice period for permit applications.
Part IV Records and Accounts of a Fundraising Appeal
16. Financial Records
Clause: Every person or entity conducting a fundraising appeal is required to maintain accurate financial records. These records must include:
-Details of contributors, including names and amounts contributed.
-Information on the bank account where the funds are deposited.
-A complete record of all funds and assets received.
-A detailed account of how the funds and assets were used, including any expenditures on wages, salaries, commissions, or other administrative costs.
-Any other relevant financial details as may be required by the Cabinet Secretary or county executive committee member.
17. Other Records Relating to a Fundraising Appeal
Clause: In addition to financial records, the fundraising manager must keep the following records:
-Names and addresses of all persons who assist in the fundraising appeal.
-Names and addresses of all individuals or organizations who gain a financial advantage from the appeal, excluding those for whom the appeal was conducted or suppliers of goods and services.
-Copies of all necessary consents required under the Act.
18. Storage of Records
Clause: All records and accounts related to a fundraising appeal must be stored securely at the registered office or principal place of business of the fundraising manager. These records must be kept for at least three years after the appeal ends.
19. Duty to Provide Reports and Information
Clause: Fundraising managers are required to submit a summary of the records and accounts related to the appeal to the Cabinet Secretary or county executive committee member within 30 days after the appeal ends. Additionally, the authorities may request further information or documents as needed, and the fundraising manager must comply within seven days.
20. Declaration of Source of Contribution
Clause: Contributors to a fundraising appeal must declare the source of their contributions. Additionally, beneficiaries who receive funds from a fundraising appeal must declare these funds in their income tax returns.
21. Inspectors
Clause: The Cabinet Secretary or a county executive committee member may designate public officers as inspectors to conduct inspections of fundraising appeals. The Auditor General may also inspect the books and accounts of fundraising appeals.
22. Conduct of Inspections
Clause: Inspectors may enter the premises of a fundraising manager at any reasonable time to conduct inspections. They may inspect, copy, or remove documents related to the fundraising appeal. Inspections must be conducted with proper authorization and notice given to the fundraising manager.
23. False Information in Conducting a Fundraising Appeal
Clause: It is an offense to make false representations or statements during a fundraising appeal that mislead or deceive the public or any individual. The person making the false representation may be required to surrender any funds received as a result of the appeal.
24. Misappropriation of Funds
Clause: Misappropriating funds received through a fundraising appeal for purposes other than those for which the appeal was held is an offense.
Part V — Miscellaneous Provisions
25. Fiscal Incentives
Clause: The Cabinet Secretary, in consultation with the Cabinet Secretary responsible for finance, is empowered to grant fiscal incentives to individuals or entities that make voluntary contributions through a fundraising appeal. These incentives are intended to encourage philanthropy and voluntary donations within the Republic.
26. Decentralization of Services
Clause: The Act mandates the decentralization of services related to fundraising appeals to wards and vids and resources of communities can vary significantly from one area to another.
27. General Penalty
Clause: Any person who commits an offense under this Act for which no specific penalty is prescribed shall be liable to a fine not exceeding two million shillings, imprisonment for a term not exceeding three years, or both.
28. Regulations
Clause: The Cabinet Secretary, in consultation with county executive committee members, is authorized to make regulations necessary for the effective implementation of the Act. These regulations may cover areas such as:
-The issuance of permits.
-Monitoring mechanisms to ensure transparency and accountability.
-Financial incentives for public-purpose activities and funds.
-Sensitization programs and the dissemination of information.
-Fees and charges related to the implementation of the Act.
29. Extension of Time
Clause: The Act provides for the extension of timelines prescribed for the performance of any action under the Act, upon application to the relevant committee.
30. Repeal of Public Collections Act
Clause: The Public Collections Act (Cap. 106) is repealed by this Act, and all directions, certificates, orders, and approvals issued under the old Act that were valid before the commencement of this new Act are deemed to have been made under this new Act.
31. Transitional Provisions
Clause: Transitional provisions are included to facilitate the implementation of the new Act, ensuring that ongoing fundraising activities and regulatory processes are not adversely affected by the change in law.
Part VI — Repeal and Transitional Provisions
32. Repeal of Public Collections Act (Cap. 106)
Clause: The Public Collections Act, which previously governed fundraising activities, is formally repealed by this new Act. All directions, certificates of authority, orders, and approvals issued under the old Act that were valid immediately before the commencement of the new Act are deemed to have been made under the provisions of the new Act.
33. Transitional Provisions
Clause: Transitional provisions are included to guide the implementation of the new Act, ensuring that all ongoing and future fundraising activities are governed by the new law without causing legal or administrative disruptions. These provisions detail how activities and processes that began under the old Act are to be handled under the new Act.
This section outlines the offenses under the Act, including:
-Conducting a fundraising appeal without a valid permit.
-Failing to maintain proper records or submit required reports.
-Providing false information in connection with a fundraising appeal.
-Misappropriating funds raised through an appeal.
The penalties for these offenses include fines, imprisonment, or both, depending on the severity of the offense.
Regulations
Clause: The Cabinet Secretary is empowered to make regulations necessary for the effective implementation of the Act. This includes regulations on:
-The application process for permits.
-The conduct of fundraising appeals.
-The maintenance of records and submission of reports.
-The powers and duties of inspectors.
-Any other matters necessary to ensure compliance with the Act.
Powers of Inspectors
Clause: Inspectors appointed under the Act have the authority to:
–Enter and inspect any premises where fundraising activities are conducted.
-Examine and copy records related to a fundraising appeal.
-Investigate complaints and conduct audits to ensure compliance with the Act.
Appeals
Clause: Any person aggrieved by a decision made under the Act, such as the refusal of a permit or the cancellation of a fundraising appeal, has the right to appeal the decision. The appeal must be made to the relevant committee or tribunal as prescribed by the regulations.
Protection from Personal Liability
Clause: Public officers or inspectors acting in good faith and in the execution of their duties under the Act are protected from personal liability. This protection does not extend to actions that are unlawful, negligent, or outside the scope of their official duties.
Conflict with Other Laws
Clause: In the event of any conflict between the provisions of this Act and any other law, the provisions of this Act prevail in matters relating to public fundraising appeals.
Commencement
Clause: The Act comes into force on the date it is published in the Kenya Gazette or on such other date as may be appointed by the Cabinet Secretary.