In an organisation with no shares, the member register is the only record of who owns the governance rights. The Act makes it mandatory, evidential and open.
An incorporated association “must maintain a register of members that records the names, alphabetically arranged, and the last known address of each person who is, or has within the last five years been, a member, whether singly or as part of a jointly held membership”. The register “must be kept in written form or in a form that is readily accessible and convertible into written form”.
Contents
The statutory minimum is name and last known address, alphabetically arranged, for current members and for anyone who has been a member in the last five years. Good practice adds the date of admission, the class of membership, the date and manner of ceasing to be a member, whether the membership is jointly held and with whom, an email address for notices under section 140, and, where a membership is held on behalf of another, the beneficial owner’s details required by section 89. A spreadsheet or database satisfies section 87(2) provided it can be printed. The register is among the records the association must keep at its principal place of business and registered office (section 85) and among the accounting-related records the Registrar can inspect (section 154).
Evidential effect
Section 87(3) provides that “the entry of the name of a person in the member register is evidence that the person is a member of the incorporated association and entitled to the benefits of membership”. Section 87(4) requires the association to treat the registered member “as the only person entitled to” vote, receive notices, and exercise the other rights and powers of membership. In a dispute over who may vote at a meeting, the register decides; a person not on it has no vote, and a person on it cannot be refused one. This is why control of the register matters so much in factional disputes, and why section 88 gives the courts power over it.
Correction and rectification
Clerical or minor errors may be corrected where the Registrar or every member of the committee agrees (section 87(5)). Anything more serious goes to court. Section 88 provides that if a person’s name “is wrongly entered in, or omitted from, the member register”, the District Court may, on the application of the person aggrieved, order rectification, payment of compensation by the association for any loss, or both. The section gives the District Court a jurisdiction it would not otherwise have, and it is the natural remedy for a member struck off without the section 71 procedure or an applicant refused admission contrary to the rules. See expulsion.
Beneficial ownership of memberships
Section 89, an anti-money-laundering provision, defines the beneficial owner of a membership as “the person who ultimately owns or controls the membership without their name appearing on the member register”. No notice of any trust may be entered on the register, but the association must maintain sufficient information to identify the beneficial owner of a membership if the committee becomes aware of one, and must disclose it to the Registrar on written request “without the necessity for a Court order” (section 89(2)). Failure is an offence by every member of the association, with a fine of up to K5,000 or six months (section 89(3)). A nominee holding a membership for a company, a politician or a foreign donor must therefore be recorded as such internally, even though the register shows only the nominee.
Who may inspect it
The member register is one of the records that section 84(1)(c) requires to be available for inspection by any member, or a person authorised in writing by a member, who gives written notice of intention to inspect. Inspection is at the principal place of business or registered office on working days between 9 a.m. and 5 p.m., and copies must be supplied within ten days on payment of a reasonable fee (section 85). The Act does not open the register to the public; a non-member seeking to know who belongs to an association must rely on the Registrar’s information powers or a court order. See inspection of records.
Penalties
Failure to comply with section 87 is an offence by every committee member, with a fine of up to K1,000 or one month (section 87(6)); failure to comply with the beneficial ownership duty in section 89 is an offence by every member, with a fine of up to K5,000 or six months; and a false entry in the register made with intent to defraud is falsification of records under section 165, punishable by up to K100,000 or two years.
Update the register at each admission, resignation, expulsion and death; keep former members’ entries for five years marked with the date of cessation; reconcile it with subscriptions received before each annual meeting; and produce it at the meeting so that eligibility to vote can be checked against it.
Sources
- Associations Incorporation Act 2023 — ss 71, 84(1)(c), 85, 87, 88, 89, 140, 154, 165
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.