PUBLIC PARTCIPATION IN KENYA; A MERE FORMALITY
INTRODUCTION.
On October
22 2024, the Housing levy was declared constitutional by a three -judge bench
consisting of Justices Olga Sewe, John Chigiti and Josephine Mong’are. This
rejection was in response to a petition led by Busia Senator Okiya Omtatah, who
challenged the legality of the Housing levy[1],
alleging that there was inadequate input from those who would bear the
financial implications .His argument and contention was that the Senate and
National Assembly had failed to involve all counties in public consultations,
having visited only 27 out of 47 counties. However, the three -judge rule found
that there was adequate public participation. Nonetheless, the Finance Bill
2023/2024 was also declared constitutional by the Supreme Court despite the
cries of the larger populace and the
life threatening protests led by the audacious youth all over the
country in bid to reject the same. With these recent happenings, it begs the
question, is public participation just an embellishment in our well-articulated
Constitution? Is it just a farce, a mere formal procedure?
In an effort to answer these questions, we will look at the existing legal framework on public participation, importance of public participation and a major challenge facing the same.
ANALYSIS.
Participation can be viewed as the process of
interaction between an organization and the public with an aim of making an
acceptable and better decision[2]. The
process involves informing and listening, dialogue, debate and analysis, and
implementation of agreed solutions[3]. It is
pertinent to note that public participation is a process and not a one
day event[4].
Watering down this process undermines the sovereign power conferred to the
people and their power to exercise it[5].
Therefore, if this power is undermined it'll be nearly impossible for democracy
to exist since it is engraved in effective public participation. Below are
limbs that will try to decipher this whole concept of public participation.
1)
The existing legislation in regards
to public participation
When it
comes to the legislative activities of Parliament in Kenya, public
participation is a very fundamental principle and it is encapsulated in various
Articles of the constitution that is; Article
1,10(2)a,118,119,201,221,232 and the Fourth Schedule Part 2(14). Moreover,
Article 35 of the 2010 Constitution
and the Access to information Act, No 31
of 2017 stipulate that every citizen has the right to access information.
When read with the aforementioned articles of the constitution it will be
interpreted that it is pertinent that Kenyans be equipped with the correct
information to facilitate public participation. Furthermore, Sections 87 to 92 and 115 of the County government Act 2012 are quite
emphatic in the inclusion of the public in the work of the County government.
Further, The
International Covenant on Civil and Political Rights (ICCPR) , a ratified
international instrument, is quite emphatic on the inclusivity of citizens in
matters of national concern. Regional laws such as The African Charter on Human and People's Rights (ACHPR) echoes and
affirms that citizens have a right to engage in public affairs.
The courts have also set precedents in regards to public participation. In the case Mugo and 14 others v Matiang’i &another ; Independent Electoral and Boundary Commission of Kenya &19 others(Interested parties)[6], it was held that public participation was the centerpiece of every decision made by state and non -state agencies and every administrative or statutory decision should have a component of public participation . Needless to say, in British American Tobacco Kenya ,PLC, v Cabinet Secretary for the Ministry of Health and Others[7] principles guiding public participation were laid out.
2)
Importance of Public participation[8]
Public
participation is vital because : it
promotes citizen empowerment by giving a voice to the voiceless; provides a
forum for sharing innovative ideas and actions; encourages enhancement of
citizen- government relations; effective legitimation of government programs,
appropriate prioritization of projects; improved delivery of public services
and; governments responsiveness[9].
Nonetheless, it promotes accountability among the democratically elected
representatives.
In order to
enjoy the benefits of public participation, the process ought to be real,
effective and intentional by ensuring the proactive engagement with the
citizens and transparently disseminating information.
3) Challenges facing
public participation.
Even though
there is existing legislation on public participation, there are hurdles in
attaining an effective and seamless process. One of the challenges is , limited awareness and
inadequate access to information which are
key factors in facilitating effective public participation. For instance
, in recent enforcement of The Social Health Insurance Fund ,many a Kenyans
are in turmoil since they are ignorant on the working of
this scheme. In such an instance, the government should have ensured that the
civic education was sufficient to enable a smooth transition from NHIF to SHIF.
However, the
question that arises and that has posed to be a challenge is ,should the
opinions and views of the people be binding to Parliament? Nonetheless, if the
decision is not binding, can Parliament give reasons for rejecting the views of
the citizens?
I opine
that, opinions of the citizens on public matters ought to be binding. This will
be a reflection of the proper interpretation of Article 1(1) of the Constitution of Kenya 2010 , that all
sovereign powers belongs to the people of Kenya. Nonetheless ,the Members of
Parliament are a conduit through which the people get to exercise their
sovereign power pursuant to Article 1(2)
of the Constitution of Kenya 2010. Therefore, understanding the binding
nature of the people's opinions on the elected representatives, will uphold the
sovereignty of the people at the same time ensuring satisfactory outcomes.
The Supreme Court in their judgment ,on the finance bill 2023/24 was astounding to the core when they held that , “National Assembly is under no obligation to provide reasons for accepting or rejecting public views ... “ If National Assembly has no obligation to provide reasons for accepting or rejecting public views, why then undertake public participation? Why then engage in a wild goose & illusory process?
Another
curious holding was that there is no obligation on Parliament because we have
no rules in place! We don’t need rules to give effect to Constitutional
Obligations. Unless the Supreme Court reviews this Judgment only on the extent,
remit and principles of public participation and make it mandatory and not discretionary on Parliament, this will be
the Judgment that destroyed democracy as we know it in Kenya.
Nonetheless, this is contradictory to what the Supreme Court emphasized on public participation in the case; British American Tobacco Kenya ,PLC, v Cabinet Secretary for the Ministry of Health and Others[2019]KESC 15 (KLR); and this has created a very dangerous precedent. Now in future a sham Public participation can be done and new substantive amendments made without the conducting fresh public participation.
In conclusion, public participation should be treated with so much sacrosanctity hence, the government must offer effective ways for dialogue and be willing to adjust policies based on public feedback. This should be made possible by ensuring that there are accessible platforms for dialogue on proposed legislation. In the same light and spirit, Parliament ought to understand that they are bound by citizens’ opinions and views.Further, it is pertinent that a substantive law be formulated elucidating on how public participation should be carried out and this will greatly reduce the ambiguities and wrangles while conducting the process. With these measures in place, Kenya will have upheld the sovereignty of people and strengthened its democracy
Okoiti
& 6 others v Cabinet Secretary for the National Treasury and Planning &
3 others; Commissioner-General, Kenya Revenue Authority & 3 others
(Interested Parties) (Petition E181, E211, E217, E219, E221, E227, E228, E232,
E234, E237 & E254 of 2023 (Consolidated)) [2023] KEHC 25872 (KLR)
(Constitutional and Human Rights) (28 November 2023) (Judgment)
[2] The National Assembly of Kenya ,PUBLIC PARTICIPATION IN THE LEGISLATIVE PROCESS, The National Assembly Taskforce on Factsheets, Speaker's Rulings and Guidelines ,Second Edition; The Clerk of the National Assembly August 2022.
[3] Ibid
[4] Shirley A.Genga , Is Public participation in
Governance purely cosmetic? September 12,2023; JURIST staff
[5] Constitution of Kenya 2010, Article 1(1)
[6] [2022]KEHC 158 (KLR).
[7] [2019]KESC 15 (KLR).
[8] The National Assembly of Kenya(n1)
[9] Institute of Economic Affairs, Review of status of
Public Participation, and County Information Dissemination Frameworks,2015
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