Public Participation and the Public Participation Bill, 2018

Public Participation is one of the national values and principles of governance enshrined in the Constitution of Kenya, 2010 (the Constitution). Article 10(2)(a) of the Constitution specifically states that the national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people. The participation of the people is popularly referred to as Public Participation.

Article 10(1) of the Constitution states that national values and principles of governance bind all state organs, state officers, public officers and all person whenever any of them:

1. applies or interprets the Constitution;
2. enacts, applies or interprets any law; or
3. makes or implements public policy decisions.

Increasingly, from the court corridors, we have seen some legislation and policies invalidated due to inadequate Public Participation. For instance, in November 2018, the Contempt of Court Act, 2016 was declared to be invalid by the Constitutional Court for lack of Public Participation. We have also come across instances of County Government legislation and policies being invalidated for the same reasons. In a decision delivered against a County Government, the court faulted the County Government’s legislative and policy making processes due to inadequate Public Participation, by stating, “Public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfillment of the Constitutional dictates..” Moreover, the Court of Appeal, in 2017, commented as follows on Public Participation, “…The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. The Constitution in Article 10 which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideas and aspirations of our democratic nation…” It follows that individuals have a right to challenge any administrative action, legislation or public policy decision on the grounds of inadequate public participation.

What is the standard or extent of Public Participation required?

In numerous cases, the courts have held that the standard to be applied in Public Participation is one of reasonableness. This means that it depends on the peculiar circumstances and facts at issue in each case. A decision by the South African Constitutional Court captured the required standard appropriately by stating that: “The forms of facilitating an appropriate degree of participation in the lawmaking 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 to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”

Public Participation Legislation

Owing to the central place of Public Participation in Kenya, the Senate is currently debating the Public Participation Bill, 2018 (the Bill). The Bill proposes to provide a general framework for effective Public Participation in order to give effect to the constitutional principles of democracy and participation of the people under the Constitution.

The conduct of Public Participation under the Bill shall be guided by the following principles:

1. that the public, communities and organizations to be affected by a decision shall have a right to be consulted and involved in the decision-making process;
2. provision of effective mechanism for the involvement of the public, communities and organizations that would be affected by or be interested in a decision;
3. participants’ equitable access to the information they need to participate in a meaningful manner;
4. that public views shall be taken into consideration in decision-making;
5. development of appropriate feedback mechanisms;
6. adherence to the principles of leadership and integrity set out in Chapter 6 of the Constitution;
7. adherence to the national values under Article 10 of the Constitution;
8. adherence to the principles of Public Participation as may be prescribed by any written law; and
9. promoting sustainable decisions recognizing the needs and interests of all participants, including decision makers.

1. Parliament- the relevant committee in each House responsible for rules and procedure;
2. the Judiciary- the Chief Justice;
3. independent commissions or offices, boards, authorities or any other public body- the respective secretaries or chief executive officers of the public body;
4. government ministries- the cabinet secretaries for the Government departments responsible for Public Participation;
5. county assemblies- the county assembly committees responsible for Public Participation; and
6. county executives- the county secretaries.

All persons have a constitutional right to adequate participation in the formulation and application of legislation and public policy decisions. In instances of inadequate Public Participation, an aggrieved party has a right to seek redress from the courts for a declaration or order invalidating the contravening legislation or policy.

When fully implemented, Public Participation will also ensure that stakeholders are adequately involved and consulted concerning legislation and policies that impact on them. If you have any questions relating to Public Participation, do not hesitate to write to James Wairoto at jwairoto@mwc.legal. Please note that this e-alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.