The Imperative of Public Participation in Kenya’s Governance
By the Constitution of Kenya 2010, Kenyans committed to a government that embodies essential values such as human rights, equality, freedom, democracy, social justice, and the rule of law. This foundational document reflects the people’s sovereign and inalienable right to determine the form of governance they wish to adopt. However, the realization of these ideals hinges significantly on the principle of public participation, which is embedded in the Constitution’s Preamble, Article 10(2) on national values, and Article 118, which emphasizes public access and participation.
The Role of Public Participation in Democracy
Public participation is a cornerstone of any democratic society. It ensures that citizens have a voice in the decision-making processes that affect their lives. The Constitution of Kenya recognizes this by mandating that the government actively involves the public in legislative and policy-making processes. However, recent events, including the ongoing impeachment proceedings against the Deputy President, have highlighted significant gaps and misunderstandings regarding the public’s role in governance.
Cosmetic Participation: A Flawed Approach
Recent court rulings have underscored a troubling trend: government officials often treat public participation as a mere formality, conducting it as a “cosmetic” exercise to check a box rather than genuinely engaging with citizens. This has led to the courts declaring several legislative actions unconstitutional due to inadequate public involvement. For instance, the Finance Bill 2023, the Privatisation Act 2023, and the implementation of the new Social Health Insurance Fund (SHIF) were all struck down for failing to meet the constitutional requirement for public participation.
Defining Meaningful Public Participation
In 2019, the Supreme Court’s ruling in the case of BAT against the Ministry of Health and Others established crucial criteria for meaningful public participation. These criteria include:
- Clarity of Subject Matter: The public must understand the issues at hand.
- Clear Structures and Processes: Engagement methods should be straightforward and accessible.
- Balanced Influence: Opportunities for public input must be equitable.
- Commitment to the Process: There must be a genuine dedication to engaging the public.
- Inclusive Representation: All segments of society should be represented.
- Integrity and Transparency: The process must be open and honest.
- Public Capacity to Engage: The public should be educated and informed about the subject matter before participation.
Legislative Guidelines and Their Shortcomings
In August 2022, Parliament published Factsheet No. 14, outlining guidelines for effective public participation in the legislative process. Despite these guidelines, the government and public institutions have struggled to implement robust processes that align with constitutional mandates. The recent protests led by Gen Z against the Finance Bill 2024 exemplify widespread dissatisfaction with the lack of genuine public involvement in legislative drafting, raising concerns about the erosion of constitutional democracy.
Current Controversies and Legal Challenges
The procurement of renovation contracts for the Jomo Kenyatta International Airport (JKIA) by the Adani Group has come under scrutiny due to secrecy and inadequate public participation. Additionally, a legal challenge regarding the new funding model for university education has emerged, citing a lack of public involvement as a primary concern. These instances suggest that the government has either failed to develop effective public participation strategies or has chosen to bypass constitutional requirements altogether.
The Public Participation Bill 2024: A Potential Solution
The proposed Public Participation Bill 2024 aims to establish a legal framework for citizen involvement in governance. This Bill seeks to create mechanisms for addressing complaints and ensuring redress through institutions like the National Commission on Human Rights, the Commission on Administrative Justice, and the Independent Police Oversight Authority. It also provides general guidelines for public bodies to follow during participation exercises, from initiation to completion.
However, the Bill does not address the quantitative aspects of public participation, such as determining an appropriate sample size for nationwide engagement. This omission raises questions about the effectiveness of the proposed measures.
Learning from Global Best Practices
Kenya can draw inspiration from countries that have successfully integrated public participation into their governance frameworks. For example, South Africa’s Parliament employs “Arnstein’s Ladder of Participation,” which outlines a spectrum of engagement that ranges from informing to consulting, involving, and ultimately providing feedback to citizens. This model ensures that each stage of public participation enhances opportunities for citizens to influence decisions that directly affect them.
Similarly, the Environmental Protection Agency (EPA) in the United States utilizes the “Spectrum of Public Involvement,” which includes five key processes: outreach, information exchange, recommendations, agreements, and stakeholder action. Each process is designed to achieve specific outcomes, ensuring that public participation is meaningful and effective.
The Need for a Scientific Approach
Without a clear and scientific method for collecting public input, participation risks becoming a superficial exercise devoid of constitutional significance. If the executive and legislative branches do not enhance their approach to public engagement, there is a real danger that policy decisions and legislation will continue to face legal challenges, undermining the very democratic principles enshrined in the Constitution.
In summary, the path to meaningful public participation in Kenya’s governance is fraught with challenges, but with the right frameworks and commitment, it is possible to create a more inclusive and democratic society.