Now that the trustees of the Mwangaza Trust have dissolved the trust and reconstituted themselves into a political party, one may safely comment on the controversies behind it without being accused of attempting to forestall its objectives. And possibly one comment that all lawyers have pondered over the trust wanted to make is that it is a legal boo-boo.

Without a doubt, the idea to form the Mwangaza Trust was ingenious. The promoters of the trust were looking for a way in which they would constitute themselves into a legal body without failing foul of the numerous prohibitive legislations in the country. They needed to operate under a body that did not require approval, registration and thus could not be deregistered. The creation of a trust was the ultimate solution.

A trust is created whenever property is placed in the hands of a person called a trustee, who is under a duty to use that property for the benefit of some people, called beneficiaries. All trusts are governed by the deed that established them and the courts. The deed will state to whom the property has been placed to use as trustee, the people who are to benefit from the property, and the exact benefit they are supposed to receive. This benefit must be proprietary, for instance, an income, allowance, scholarship or even ownership of the property itself.

The courts are left as the supervisors of the administration of the trust. It is the duty of the courts to ensure that the trustees do not use the property for their own personal benefit, or for purposes for which it was not intended. The courts also ensure that the trustees do not let the trust property to run down, that they invest it wisely, and that they adhere to the provisions of the trust deed. Courts, however, can only supervise the administration of a particular trust at the insistence of the beneficiaries. Beneficiaries are the only people who have a right to complain to court about the administration of the trust. The powers of the court, therefore, depend a lot on the beneficiaries. For this reason, it is a requirement of the law that for a trust to be valid, it must have definite and identifiable beneficiaries.

The beneficiaries must be identifiable in the sense that they are a distinct class of persons. They could be “the children of Mr.X” or “the students of school Y”. Thus a trust for the benefit of all Kenyans generally is invalid for the lack of identifiable beneficiaries. So would be a trust, “for all the workers in the Kenyan sugar industry” or a trust “for all the inhabitants of Mathare Valley”. Courts, therefore, generally declare invalid trusts that have no definite beneficiaries, that confer no tangible benefits, and that have no clear objectives. This is because there will be no beneficiary personally interested in the enforcement of the trust, and thus who can insist on its proper execution. Further, the courts cannot determine, in the face of non-tangible benefits, whether they have been conferred to the beneficiary.

This is one ground upon which the Mwangaza Trust is invalid. It is a trust created to educate Kenyans generally on democracy. It offends the rule that requires definite beneficiaries. It can only be valid if it is a charitable trust. Charitable trusts usually have no definite beneficiaries, and are mostly created to benefit a large indefinite class of people. Their existence, however, is allowed by law on grounds of their public benefits. They also, however, must conform to some rules.

Firstly, they must be of a charitable nature. The law recognizes only four ways in which a trust can be charitable. That is, when the trust ids for the relief of poverty, advancement of education, advancement of religion, or if it cannot fit correctly under these heads, when it is for the purpose beneficial to the community.

Secondly, a charitable trust must enhance public benefit. The courts must be able to objectively conclude that the trust will result in a better society. A trust for the advancement of devil worshiping as a religion cannot be charitable. It must not include other purposes which are not of a charitable nature.

The Mwangaza Trust would also be invalid if it were judged under the rules of charitable trusts. For the interpretation of “advancement of education” under the law, excludes any education that is politically oriented.

This rule was laid down by the English House of Lords, which stated that, “…a trust for the attainment of political objects has always been held invalid, not because it is illegal, for everyone is at liberty to advocate or promote by any lawful means a change in the law, but because the court has no means of judging whether the proposed change in the law will or will not be for the public benefit, and therefore, cannot say that a gift to secure the change is a charitable gift”.

The rule was applied in a case where property was left to prominent members of the Labour Party as trustees of an education fund for the advancement of adult education on social, political and economic values and civic duties. The English judge who declared the trust invalid, Judge Vaisery, stated: “Political propaganda masquerading – I do not use the word in any sinister sense- as education is not education within this sense. In other words, it is not charitable.”

He also added that “the principle that legitimate and proper political aims and ambitions are not charitable is far too well settled for me at this stage to attempt to depart from or refine upon it.” And I think the issue of the Mwangaza Trust is better left to rest where it did.