Under the 2010 Constitution of Kenya, Kenyans committed to a government based on the fundamental values of human rights, equality, freedom, democracy, social justice and the rule of law. The people of Kenya have chosen to exercise their inalienable sovereign right to determine their form of government.
At the heart of any democratic society is the element of public participation. The Constitution included this principle in its preamble, Article 10 (2) on national values and Article 118 which talks about public access and participation.
Recent events in the country, including the impeachment of the Vice President, have highlighted glaring gaps, misunderstandings, and the need for a defined public engagement process.
Recent court decisions have shown that government officials do not actively engage people in policy making and legislation, but instead carry out public participation as a “cosmetic” exercise merely to tick a box.
The Courts found the Finance Bill 2023, Privatization Bill 2023 and the implementation of the new Social Health Insurance Fund (SHIF) to be unconstitutional and lacking in remedy due to lack of public participation.
In 2019, the Supreme Court, in BAT v. Department of Health et al, set out the components of meaningful public engagement.
These include clarity of topic for the audience to understand; Structures and processes (method of participation) for participation are clear and simple; The opportunity for balanced influence from the public at large; Commitment to the process; Inclusive and effective representation; Integrity and transparency of the process; The ability to participate on the part of the public, including the need to first educate the public about the topic.
For its part, in August 2022, Parliament reviewed and published Fact Sheet No. 14 setting out guidelines for effective public participation in the legislative process.
Despite these guidelines, the government and public institutions have not mobilized robust public participation processes as stipulated in the Constitution. Generation Z led the protests against the Finance Bill 2024 highlighting citizens’ dissatisfaction with the lack of public participation in drafting the bill, resulting in a violation of constitutional democracy.
Recently, the purchase of JKIA renewal contracts for the Adani Group became the subject of public and court scrutiny following secrecy and lack of public engagement.
The implementation of the new funding model for university education has been brought before the courts on the grounds of, among other things, lack of public participation. It appears that the government has not figured out how to conduct public participation in an effective manner or has simply chosen to bypass constitutional requirements.
Perhaps the issuance of the Public Participation Law, which is currently in draft form through the Public Participation Bill 2024, and its effective implementation, may herald a new era of meaningful public participation.
The draft law paves the way for citizen participation in governance affairs by establishing a mechanism for complaints and addressing them through institutions such as the National Human Rights Committee, the Administrative Judiciary Committee, the Independent Police Oversight Authority, and others.
The draft law also provides general guidelines aimed at guiding public bodies through public engagement processes, from beginning to end. Perhaps the only downside is that the draft law does not address the quantitative aspect of public participation, including ensuring an appropriate and acceptable sample size for public participation at the national level.
Kenya can borrow a leaf from countries that have succeeded in involving their citizens in the decision-making process. The South African Parliament has adopted what is known as the “Arnstein Ladder of Participation” which provides an overview of public engagement behavior to inform, consult, engage and ultimately provide feedback.
This model is designed to ensure that each stage of public engagement increases the opportunity for citizens to influence decisions that directly affect them.
The Environmental Protection Agency in the United States of America has adopted what is known as the “Scope of Public Participation,” which is a model that includes 5 main processes for successful public participation. These are awareness-raising and exchange of information, recommendations, agreements and stakeholder actions.
Each process includes a methodology to achieve desired results. For example, the outreach process may include the use of press releases, the recommendation phase may include establishing a task force, while the agreement phase may involve negotiations.
This ensures that an inclusive public engagement process values the opinions of all citizens and filters the quality of feedback received.
In the absence of a clear and scientific method for gathering the views of Kenyans, public engagement will remain merely a public relations exercise devoid of the constitutional threshold. If the executive and legislative branches do not intensify their efforts in this aspect, political decisions and legislation aimed at achieving the government’s goals are likely to continue to face challenges.
Martin Munyo (Partner), Sadiya Abdi (Associate), Abraham Wakiaga (Associate), Grace Mwenda (Trainee Advocate) all at DLA Piper Africa Kenya, (IKM Advocates)
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