Members can remove a committee member by ordinary resolution. When the members cannot or will not act, or the misconduct is serious enough to warrant keeping the person away from every association, the Act lets the Court step in.
Disqualification orders: section 32
The Court may order that a person must not, without its leave, for a period of up to five years: be a committee member; be a promoter of a proposed association; be a public officer; or “in any way, whether directly or indirectly, be concerned in or take part in the management of an incorporated association”. The grounds are that the person has (a) been convicted of a relevant offence; (b) been convicted of an offence under this Act; (c) been convicted of fraud in relation to an association while a committee member; (d) been found liable for breach of duty to an association while a committee member or member; (e) been found liable for breach of duty to a company while a shareholder or director; (f) been convicted abroad of a corresponding offence; (g) been prohibited abroad from managing a non-profit; or (h) become of unsound mind.
The order may be made even though the person is also liable in damages for the same matters (section 32(3)). The Court must notify the Registrar (section 32(4)), and breach of the order is an offence carrying a fine of up to K10,000 or six months (section 32(5)). A disqualified person who acts anyway is also treated as a committee member for every duty in the Act (section 30(3)).
Who may apply and how
Section 33 of the Associations Incorporation Act 2023 lists the applicants: the liquidator of the association; a member or committee member; a creditor or former creditor; or the Registrar. Section 34 requires the applicant to give the person at least 20 days’ notice of the intention to apply, and entitles the person to attend the hearing, give evidence and call witnesses. “Court” in the Act means a court of competent jurisdiction unless otherwise specified (section 3), so an application would ordinarily go to the National Court, which also hears the related applications under sections 45, 50 and 52.
Leave to act despite a prohibition
A person automatically disqualified under section 30(2)(c) because of a Companies Act prohibition may apply to the Court for leave under section 31, which may be granted on conditions; the Registrar and any interested person may be heard, and breach of the conditions is an offence with a fine of up to K10,000 or six months. A person disqualified by a section 32 order may likewise seek the Court’s leave, since the order operates “without the leave of the Court”. Neither route relieves a person of the five-year bar for conviction of a relevant offence in section 30(2)(d), which is absolute.
Removal by the Court: section 45
Section 45(1) allows the Court to remove a committee member from office “in a proceeding commenced either by its members holding at least twenty percent of the voting power and additionally in the case of a public benefit association, the Registrar”, if it finds both that the committee member “engaged in bad faith or dishonest conduct, or exercised a gross abuse of authority or discretion, or failed to disclose a known material interest, or ... has committed a serious breach of the rules”, and that “removal is in the best interests of the incorporated association”. The Court may also bar the removed person from serving on the committee for a period it prescribes (section 45(2)). Where members of a public benefit association apply, they must join the association and the Registrar as parties (section 45(3)).
The 20 per cent threshold is designed to stop a single disgruntled member using the Court as a weapon, while allowing a substantial minority to act when the majority is captured by the wrongdoer. Where the members lack 20 per cent, their alternatives are to requisition a special meeting under section 67 (which needs 33 per cent) to remove the committee member by ordinary resolution, or to seek a compliance order or injunction under sections 50 and 52, which any single member may do.
The two powers compared
| Disqualification (s 32) | Removal (s 45) | |
|---|---|---|
| Effect | Bars the person from any association for up to five years | Removes from this committee; may bar from this committee for a period |
| Grounds | Convictions, findings of breach of duty, foreign bars, unsound mind | Bad faith, dishonesty, gross abuse, non-disclosure, serious breach of rules |
| Applicants | Liquidator, member, committee member, creditor, Registrar | Members with 20% of votes; Registrar for public benefit associations |
| Procedure | 20 days’ notice; right to be heard | Ordinary court proceeding; association and Registrar joined where public benefit |
| Breach | Offence: K10,000 or 6 months | Contempt of the Court’s order |
Applications under both sections turn on documents: the minutes, the bank statements, the undisclosed contract, the conviction record. Members should use their inspection rights under sections 84 to 86, and the Registrar can use section 154, to assemble them before filing. See inspecting records.
Sources
- Associations Incorporation Act 2023 — ss 3 (“Court”, “relevant offence”), 25, 30, 31, 32, 33, 34, 45, 50, 52, 67, 84–86, 154
Before relying on anything here, read the current text of the Associations Incorporation Act 2023 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.