Kenya’s New Public Participation?Bill: Hits and Misses
3rd November, 2023
The strength of any legislation on public participation stems from how well it is able to provide a framework for ‘meaningful’ participation and, in doing so, boldly set a course for an inclusive, participatory democracy.?
Kenya's latest Public Participation bill was read in the National Assembly on 17th October, 5 years after the introduction of the first bill of its kind back in 2018. The bill seeks to animate the principles of public participation laid down in Kenya's 2010 Constitution, by offering a framework to guide engagements between the Kenyan public and government agencies.??
While a number of laws enacted following the 2010 Constitution contain provisions on public participation, including the Public Finance Management Act 2012, County Governments Act 2012, and Access To Information Act 2016. The lack of a specific overarching law more than a decade after its promulgation has meant that the standards of public participation have remained largely undefined.?
Reasonable and Meaningful Public Participation?
According to the new Bill, public participation refers to the process through which members of the public are engaged in understanding and contributing to decision-making processes likely to affect them by state agencies, including but not yet limited to the formulation of policies, budgeting and financial management, and law making processes. Notably, the proposed avenues through which the public may participate include any or a combination of public forums and written or oral submissions.?
The Bill further suggests ‘reasonable and meaningful' as the standard for all participation opportunities extended by state agencies. While the threshold for ‘reasonable’ is left to state agencies to determine, considerations of reasonability proposed are the nature of the legislation or decision, its importance to and impact on the public, as well as the need for inclusive and effective representation.?
?In its current form however, the lack of a clear definition or threshold for ‘meaningful’ opportunities sets the success of the new bill in doubt. The strength of any legislation on public participation stems from how well it is able to provide a framework for ‘meaningful’ participation and, in doing so, boldly set a course for an inclusive, participatory democracy.?
?Access to Information?
In practice, state agencies have overtime defined meaningfulness for themselves through various pieces of legislation. Nairobi County’s Public Participation Act of 2015 for instance, emphasizes access to adequate and timely information as keys enablers to meaningful public participation. This reflects the understanding that without the right information to understand and engage with the decision at hand, public participation opportunities are tokenistic at best.?
?A useful example emerges from Mombasa County. In 2021, the county government put out a notice for public participation to deliberate on the budget estimates for coming the financial year 2021/22. However, to the surprise of the public, this budget document was not available at the time that the notice was sent. Through access to information requests extended by the Coast Regional Budget Hub, the document was eventually made available online within three hours and the public participation forum was postponed allowing the public to engage with and analyse the document.?
?To avoid the challenges seen in Mombasa in 2021, the new national Bill proposes that state agencies must give adequate notice to the public on participation opportunities and publish the documents for consideration 'as widely as possible using available means, including, providing hard copies, radio, television and websites or community radio announcements’.?
Further North-West, Elgeyo Marakwet’s Public Participation Act of 2014 created a Office of Public Participation to facilitate meaningful opportunities by ensuring accessibility to public participation forums and the use of languages that are inclusive. In a similar fashion, the proposed new public participation law calls upon state organs to ensure the inclusion of persons with disabilities and those who do not speak national languages.?
Feedback?
Often, even in scenarios when information is made available to the public on time, public participation processes can be rendered meaningless if no feedback is eventually relayed on the impact of inputs given. The annual County Budget Transparency Survey conducted by the International Budget Partnership Kenya shows that reporting on public participation indeed remains a challenge in Kenya’s counties.??
To strengthen this, the Bill demands that all relevant agencies generate an annual report on public participation, and that the final decision made following public participation is communicated to the public including the reasons for the decisions taken.?
Bottom Line?
Overall, the proposed law is a progressive step towards the reality of a participatory democracy. It clearly places the legal and financial responsibility of facilitating public participation upon specific authorities at the national and county level. These authorities include national and county Parliaments, the Judiciary, independent commissions, ministries and state corporations among other public bodies.?
?More importantly, the Bill squarely affirms public participation as a right and demands that all participation processes be fair and equal. However, it remains to be seen if the general framework provided by the bill will ultimately result in reasonable and meaningful participation of Kenyans in public affairs. In the current context of fiscal strain and tough economic times, the outcome of this is near-existential for Kenya’s maturing democracy.?