ABSTRACT
Public
participation is an essential element of democracy. In a republic such as Kenya
where the people are the real custodians of the sovereign power, it becomes
necessary for them to be given a chance to directly exercise this power. Even
though the Constitution recognizes the direct exercise of sovereign power, it
is silent on how this is to be achieved. This article takes the opinion that
sovereign power is exercised directly through public participation and takes
note of the fact that the mechanism through which public participation can be
achieved is not outlined in the Constitution. For this reason, the article
examines various constitutional provisions that lay the foundation through
which public participation can footed. Further, the essay looks into the attempted
creation of legislation and policy on public participation and finally the
threshold for sufficient public participation.
1.
Introduction
In Kenya, as per Article 1(2) of
the 2010 Constitution, the prevailing constitutional paradigm aligns with the
tenets of representative democracy. While representative democracy presents
several benefits, it is essential to recognize that it also carries inherent
drawbacks. For example, it has been said that: “Democratic elections alone do
not remedy the crisis of confidence in government.”[1] Certainly, it is a truism
that in representative democracy, particularly in the lawmaking body, the representatives'
decisions do not always reflect the voice of the people. Hence, democratic
representation cannot be said to be achieved by simply exercising one’s right
to vote.[2] It goes beyond that and
there has never been a viable justification for a democratic system in which
public participation is limited to voting.[3] On the other hand, pure direct
democracy is rather impractical.[4] This leads to the urgent
need for the balance to be struck such that the democratically elected
representatives are held into account and their decisions commensurate with the
needs of the society. This balance is achieved through public participation.
It must be emphasized that
public participation is a key element of democracy. While contemplating upon
this issue, the Supreme Court of Kenya held as follows:
“Public
participation is, therefore, a major pillar, and bedrock of our democracy and
good governance. It is the basis for changing the content of the State,
envisioned by the Constitution, so that the citizens have a major voice and
impact on the equitable distribution of political power and resources.”[5]
The logic behind this sits at the
core of one objective of democracy – free expression of the will of the people.[6] Democracy unfolds the grand stage where the
people cast their voices into the collective script of decisions hence bringing
up definitiveness in leadership. The imputation of this is, ideally, democracy
(even representative democracy) can only be said to be achieved in lawmaking
when the laws speak the heart of the people.
At the very outset, a pertinent
question begs: what is public participation?
Public participation has been
defined as:
“[T]he
process by which citizens, as individuals, groups or communities (also known as
stakeholders), take part in the conduct of public affairs, interact with the
state and other non-state actors to influence decisions, policies, programs,
legislation and provide oversight in service delivery, development and other
matters concerning their governance and public interest, either directly or
through freely chosen representatives.”[7]
This may be achieved through many
means but the bottom line has always been that public participation must be
real and not illusory.[8] For this reason, there
must be a need for a well-structured legal and institutional framework that facilitates
public participation.
This analysis is grounded in the
knowledge that legislation is deficient in outlining the procedure for public
participation in Kenya. For this reason, the examination relies on caselaw to
determine the existing framework on public participation in this country.
2.
The Constitutional Underpinnings of Public
Participation in Lawmaking
Under Article 10, the Constitution
stipulates the national values and principles and solidifies public participation
as one of them.[9]
These values and principles are binding to all state organs, state officers,
public officers, and persons whenever any of them: applies or interprets this Constitution; enacts, applies or
interprets any law; or makes or implements public policy decisions.[10] Even though it does not
provide a clear definition or outline for its implementation, various
Constitutional provisions can be interpreted to form the foundation for the
principle of public participation.[11]
The principle is hinged on the fact
that all the sovereign power rests with the people of Kenya and is to be
exercised in accordance with the Constitution.[12] It has been said that:
“[P]ublic
participation is a national value that is an expression of the sovereignty of
the people as articulated under Article 1 of the Constitution. Article 10 makes public participation a
National Value as a form of expression of the sovereignty. Hence, public participation is an established
right in Kenya; a justifiable one – indeed one of the cornerstones of our new
democracy.”[13]
The Constitution stipulates that
the sovereign power resides with the people of Kenya.[14] On top of this, it states
that sovereign power can be exercised either directly or indirectly through
elected representatives and this must be by the Constitution.[15] The use of the word ‘directly’ cannot be in
vain. Since one finds limited guidance
from the Constitution on the direct exercise of sovereignty, a logical
conclusion can be drawn – that public participation stands as the sole means
through which sovereignty can be directly exercised by the people.
Emphasis must be given to the fact
that public participation is not merely a policy inclusion; it is woven into
the very fabric of the Kenyan Constitution. Beyond the sovereignty of the
people, the Constitution provides for the freedom of expression; a footing upon
which diverse voices can contribute to the national discourse.[16] The Constitution further
provides for equality in decision-making and recognizes that the views of every
citizen weigh in determining the course of the nation.[17] On top of that, the right
to information when applied to public participation enables the public to make
knowledge-based contributions.[18] These fundamental pillars–
freedom of expression, equality in decision-making, and the right to
information – form the foundation on which the edifice of public participation
rests.
With regards to lawmaking, Article
118 of the Constitution provides as follows:
(1) Parliament
shall—
(a)
conduct its business in an open manner, and its
sittings and those of its committees shall be in public; and
(b)
facilitate public participation and involvement in the
legislative and other business of Parliament and its committees.
(2) Parliament
may not exclude the public, or any media, from any sitting unless in
exceptional circumstances the relevant Speaker has determined that there are
justifiable reasons for the exclusion.
As observed, it is upon the
Parliament to ensure that the public contributes to the legislative and other
business of Parliament and its committees. Parliament would achieve this by
coming up with legislation that would set the procedure upon which public
participation can be achieved or at a bare minimum, enact an act for the
protection of the principle as it has been done in various states such as Canada[19] and the United States of
America.[20]
3.
Attempted Creation Legislation and Policy on
Public Participation
There has been an attempt to
establish a definitive legal framework for public participation to be achieved
including the tabling of the Public Participation Bill 2018 which sought to
establish various guiding principles such as:
(a) that the
public, communities and organisations to be affected by a decision shall have a
right to be consulted and involved in the decision making process;
(b) provision
of effective mechanisms for the involvement of the public, communities and
organizations that would be affected by or be interested in a decision;
(c) participants'
equitable access to the information they need to participate in a meaningful
manner; that public views shall be taken into consideration in decision making;
(d) development
of appropriate feedback mechanisms; adherence to the national values under
Article 10 of the Constitution;
(e) adherence
to the principles of leadership and integrity set out in Chapter Six of the
Constitution;
(f) adherence
to the principles of public participation as may be prescribed by any written
law; and
(g) promotion
of sustainable decisions recognising the needs and interests of all
participants, including decision makers.[21]
The Schedule of the Bill further
spells out various general guidelines for public participation. In summary, the
general guidelines notably emphasized the opportunities for public
participation, public awareness, adequate notice and access to the process,
realistic timeframe for consultation, processing of responses, and credibility
and integrity of the process.[22]
Curiously, the Bill fails to
advance a standard mechanism through which public participation can be done
(e.g., the creation of an oversight institution or one that handles all public
participation issues or stating the form through which feedback from the public
can be achieved). This must be for a good reason – the law does not want to be
cast in stone. Here, the Bill recognizes that the public comprises people from
diverse walks of life and their contributions should not be curtailed by mere
technicalities. Of course:
‘‘The forms
of facilitating an appropriate degree of participation in the law making
process are indeed capable of infinite variation. What matters is that at the
end of the day a reasonable opportunity is offered to members of the public and
all interested parties to know about the issue and have an adequate say. What
amounts to a reasonable opportunity will depend on the circumstance of each
case… What is necessary is that the nature of the concerns of different sectors
of the public should be communicated to the law maker and taken into account in
formulating the regulations.’’[23]
Instead, the Bill puts an
obligation upon the institutions conducting public participation to draw programmes
for the same. A public participation programme that has been alluded to shall
clearly identify–
(a) specific
purposes for consultation;
(b) the
community, profession or groups to be consulted;
(c) the length
of the consultations;
(d) whether
submissions should be oral, written or both; and
(e) the issues
or matter for consultation.[24]
Apart from the Bill, there also
exists a Kenya Draft Policy on Public Participation which states that:
“The main
objective of the policy is to provide the framework for the management and
coordination of public participation in Kenya for the fulfilment of the
constitutional requirement on citizen engagement in development and governance
processes in the country. Public bodies in Kenya will comply with this policy
as a constitutional requirement.”[25]
While the Act and the policy
currently lack legal force in Kenya, their existence suggests that they can
guarantee that the constitutional mandate of public participation can be met.
The speed of the process is important, as it paves the way for these
instruments to gain legitimacy, reinforcing their role as facilitators for meaningful
public participation.
4.
Sufficient Public Participation
It has been demonstrated that
public participation is a significant aspect of lawmaking, based on various
constitutional principles. However, there is a need to establish a threshold to
weigh the level of public participation, to determine whether it is sufficient
or not. Jurisprudence from our courts has insisted that public participation
must be real and not illusory.[26] For example, in Mugo & 14 others v Matiang’i &
another; Independent Electoral and Boundary Commission of Kenya & 19 others
it was held that a list of attendees of a meeting by itself would not meet the
required threshold for public participation.[27] In another case, it was
held that huddling a few people in a five-star hotel for one day or using a
newspaper advert which was beyond the means of the poor, illiterate, ordinary
persons, would not suffice as public participation.[28] Here, the court demonstrated
that public participation is not reserved for only the elites – the Wanjiku is also significant.
It must be noted that:
“Not everyone should be heard orally. The
basic elements of public participation include the dissemination of
information, invitation to participate in the process and consultation on the
legislation. Accountability, responsiveness and openness are the cornerstones
of a democratic legislative process.”[29]
Therefore, it cannot be expected of the law maker that a
proposal hearing will be given to every individual who claims to be affected. [30]What matters is that the
public is given adequate opportunity to participate.
This leads to the question: What can be said to constitute
sufficient public participation?
As it has been established, there is no legislation on
public participation in Kenya, however, courts have developed various important
guiding principles. Notably, the Supreme Court of Kenya pronounced itself in
the case of British American Tobacco
Kenya, PLC v Cabinet Secretary for the Ministry of Health, Tobacco Control
Board & others (as was cited in Constitutional and Human Rights
petition 215 of 2020 in the High Court at Nairobi) when it listed the following
guiding principles:[31]
I.
As a constitutional principle under Article 10(2)
of the Constitution, public participation applies to all aspects of governance.
II.
The public officer and or entity charged with the
performance of a particular duty bears the onus of ensuring and facilitating
public participation.
III.
The lack of a prescribed legal framework for public
participation is no excuse for not conducting public participation; the onus is
on the public entity to give effect to this constitutional principle using
reasonable means.
IV.
Public participation must be real and not illusory.
It is not a cosmetic or a public relations act. It is not a mere formality to
be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement.
There is need for both quantitative and qualitative components in public
participation.
V.
Public participation is not an abstract notion;
it must be purposive and meaningful.
VI.
Public participation must be accompanied by
reasonable notice and reasonable opportunity. Reasonableness will be determined
on a case-to-case basis.
VII.
Public participation is not necessarily a process
consisting of oral hearings, written submissions can also be made. The fact
that someone was not heard is not enough to annul the process.
VIII.
Allegation of lack of public participation does
not automatically vitiate the process. The allegations must be considered within
the peculiar circumstances of each case: the mode, degree, scope and extent of
public participation is to be determined on a case-to-case basis.
IX.
Components of meaningful public participation
include the following:
a.
clarity of the subject matter for the public to
understand;
b.
structures and processes (medium of engagement)
of participation that are clear and simple;
c.
opportunity for balanced influence from the public
in general;
d.
commitment to the process;
e.
inclusive and effective representation;
f.
integrity and transparency of the process;
g.
capacity to engage on the part of the public,
including that the public must be first sensitized on the subject matter.
The
Supreme Court, as the highest judicial authority in the Republic, issues
binding decisions of all other courts.[32]
Therefore, a duty is imposed upon lower courts to make decisions based on the
guidelines set.
5.
Conclusion
This
essay has examined the legal framework regulating public participation in
Kenya, emphasizing the imperative that public participation must be real and
not an illusion. The essay has drawn guidance from the established principles
articulated in the British American
Tobacco case as outlined above. Further, since society is characterized by
diverse demographic groups, it becomes necessary that there should be a
flexible legal approach to facilitate the exercise of sovereignty and various
constitutional rights by its constituents.
Nevertheless, existing lacunae persist, including the following: the criteria for one's capacity to participate; exceptional circumstances warranting the negation of public participation; and the allocation of the burden of proof in situations where the occurrence of public participation is uncertain. These unresolved are open for further scholarly inquiry.
* LLB Student, Catholic University of Eastern Africa, Faculty of
Law.
[1]
Beth Simone Noveck, ‘Evolving Democracy for the 21st Century’ (Huffpost 18 January 2012) <https://www.huffpost.com/entry/evolving-democracy-for-th_b_1101791>
accessed 21 December 2023.
[2]
ibid
[3]
ibid
[4]
Elliot Bulmer, Direct Democracy
(International Institute for Democracy and Electoral Assistance 2017) 12.
[5]
In the Matter of the National Land
Commission [2015] eKLR
[6]
Constitution of Kenya 2010 (CoK), Art 33.
[7]
See Kenya Draft Policy on Public
Participation 2018.
[8]
British American Tobacco Kenya, PLC
(formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the
Ministry of Health & 2 others;Kenya Tobacco Control Alliance & another
(Interested Parties);Mastermind Tobacco Kenya Limited (The Affected Party)
[2019] eKLR
[9]
CoK, Art 10 (2) (a).
[10]
Ibid, Art 10 (1).
[11]
Mugo & 14 others v Matiang’i &
another; Independent Electoral and Boundary Commission of Kenya & 19 others
(Interested Party) [2022] KEHC 158 (KLR)
[12]
CoK, Art 1 (1).
[13]
Peter Makau Musyoka and Award of Mining
Concessionary Rights to the Mui Coal Basin Deposits [2015] eKLR
[14]
CoK, Art 1 (1).
[15]
Ibid, Art 1 (2).
[16]
Ibid, Art 33.
[17]
ibid, Art 27.
[18]
Ibid, Art 35.
[19]
Protection of Public Participation Act of Canada
[20]
American Legislative Exchange Council, ‘Public Participation Protection Act’(American Legislative Exchange Council, 3
September 2023) <https://alec.org/model-policy/public-participation-protection-act/>
(accessed 22 December 2023).
[21]
Public Participation Bill 2018, cl 4.
[22]
ibid, sched
[23]
Mugo & 14 others v Matiang’i &
another; Independent Electoral and Boundary Commission of Kenya & 19 others
(Interested Party) (n 11)
[24]
Public Participation Bill 2018, sched.
[25]
Kenya Draft Policy on Public Participation 2018.
[26]
British American Tobacco Kenya, PLC
(formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the
Ministry of Health & 2 others (n 8)
[27]
(n 11)
[28]
Kiambu County Government & 3 others v
Robert N. Gakuru & others [2014] eKLR
[29]
International v. Speaker of the National
Assembly & Others (CCT 12/05) [2006] ZACC 11
[30]
Minister of Health v New Chicks South
Africa PTY Ltd [2005] ZACC 14
[31]
Law Society of Kenya v National Assembly
& 2 others; Association of Professional Societies In East Africa &
another (Interested Parties) [2022] KEHC 10070 (KLR)
[32]
CoK, Art 163 (7).
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