The place of public participation in the governance structure in Kenya

In democratic societies, public participation is not only the hallmark of citizens’ engagements but also a method through which those in positions of power ensure that they are exercising power on behalf of the people. Therefore, agents (leaders) should always go back to the appointing authority (the people), who are the principals, to inquire about how they desire that some decisions should be formulated. Public participation is at the centre of the sovereignty of the people, as the Constitution of Kenya dictates that the power that the leaders exercise is delegated to them by the people.1 It is against this backdrop that the Constitution of Kenya outlined public participation as a principle of governance.2 Of importance is that, public participation not only binds leaders in public offices but also private citizens when they apply or interpret the Constitution or any other law or when they make or implement any public policy.3

The question that begs for an answer is, why did the people of Kenya see it of
critical importance to include such a drastic measure regarding public participation?
The answer lies not any further but in the same Article 10. Public participation promotes inclusiveness, non-discrimination, protection of the marginalised, good governance, integrity, transparency and accountability.4 It is in analysis of the above impacts of public participation, that this paper seeks to discuss the place of public participation in the governance structure.

The paper argues that public participation is the crux of a good governance structure. That where a government falls short of the same, the legitimacy of its decisions, policies and laws is always questionable. Furthermore, such decisions, as argued herein are illegitimate, null and void for lack of public participation.

What is public participation?

 

The United States Environmental Protection Agency (USEPA) defines public participation “as any process that directly engages the public in decision-making and gives full consideration to public input in making that decision”.5 It further insists that public participation is a process and not a single event.6 Alison Todes defines it as “a democratic process of engaging people in thinking, deciding, planning, and playing an active part in the development and operation of services that affect their lives”.7 The Supreme Court of Kenya (SCORK), in Re British American Tobacco (BAT case) laid down the principles to be used to determine public participation.

SCORK introduced the concept of “meaningful public participation”, that for public participation to be meaningful it must have the following (i) clarity of the subject matter for the public to understand, (ii) structures and processes that are clear and simple to engage the public, (iii) commitment to the process, (iv) inclusiveness and effective representation, (v) integrity and transparency of the process, and (vi) capacity to engage on the part of the public which translates to first sensitising the public on the subject matter of public participation.8 Public participation, therefore, is a process in which the public is engaged to participate.

USEPA further enhances SCORK’s position by articulating that:

Conducting meaningful public participation involves seeking public input at the specific points in the decision process and on the specific issues where such input has a real potential to help shape the decision or action. It is rarely appropriate or useful to simply ask the public “what do you want”. Such broad questions will only raise expectations and likely direct input to areas where no influence is actually possible. Sometimes the opportunity for influence is quite small, while at other times the public can have a great deal of influence. The amount of this potential influence is the main consideration in designing a successful public participation program.9

The Constitutional Court of South Africa in Re Doctors for Life, defined public participation as the involvement of the people through forums and avenues so as to discuss issues affecting the society.10 Justice Ngcobo held that public participation is a form of “participatory democracy”.11 This means that public participation is the engagement or the involvement of the people before making decisions in matters that will directly affect them. It is, in simple terms, the process of making people legitimise decisions and laws that will affect them. This is in harmony with Lon Fuller’s idea that laws should be widely promulgated12 and that the people should know the law or the decision being made before and after. The accessing of the laws in this context means that the public should be involved in lawmaking and decision- making, from inception to implementation and even amendments, review or repeal of such laws. Therefore, public participation is process-oriented rather than end-oriented.

Finally, public participation is the legitimising of bureaucratic decisions.13 This is where the citizenry will own any bureaucratic decision proudly by the mere fact that it had the input of the people. It is the touchstone of better decision-making by widening the information base and making citizens feel that their leaders are accountable. This should be taken with a lot of cautiousness as legitimising does not imply rubber stamping the decision or the law but rather an involvement of the people in coming up with such a decision or law. Public participation, therefore, is not an end in itself but a means of achieving a good governance structure as will be demonstrated later. The emphasis of this will be clearly covered under the place of public participation in the governance structure.

Nature of public participation

 

Numerous court decisions speak to the nature and character of public participation.14 SCORK refers to true public participation as meaningful public participation. The question that implores for an answer is, what is meaningful public participation? The most critical element of public participation is reasonable notice and opportunity of public participation. SCORK in AG & 2 Others vs David Ndii & 79 Others (BBI Case) held that “the constitutional threshold” in public participation “is that of the reasonableness of notice and opportunity of public participation”.15 It was upon this constitutional threshold that SCORK relied on to formulate the requisite mode, degree, scope and extent of public participation.

In the BAT case, the guiding principles of public participation were explicitly laid down. It was ruled what the elements of public participation are. They include that public participation applies to all aspects of governance.16 Meaning that as a principle of governance under Article 10 of the Constitution, public participation is the playing ground on which all governance- related activities should be carried out. Of critical importance is that, since it applies to all aspects of governance, it is to be realised immediately and not progressively. The Court of Appeal in Independent Electoral and Boundaries Commission vs National Super Alliance & 6 Others held on this that “For the avoidance of doubt, we find and hold that the values espoused in Article 10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable. The values are not directive principles.”17

The public officer or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.18 The very act that the Constitution places a duty on a public officer or entity indicates that the Constitution values public participation as an essential element of governance. As outlined in the Doctors for Life Case, there are two aspects of the duty to promote public participation. They include the duty to provide the public with opportunities to participate in public involvement and the duty to ensure that the public is well equipped with the necessary tools to seize the opportunity presented to them, this ranges from providing the necessary information and conducting civic education.19 Impliedly, public officers or entities are tasked to take the necessary measures to ensure that the right to public participation is realised.

The public officer or entity tasked with the role of promoting public participation shall take all reasonable means to ensure that the right is realised.20 The absence of a legal framework to facilitate or lay down how public participation will be carried out will not convert the right of public participation from being realised immediately to being realised progressively. As held by SCORK in BAT case “The lack of a prescribed legal framework for public participation is no excuse for conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means”.21 The aspect of reasonableness means that whether meaningful public participation was achieved or not will be on a case-by-case basis considering factors such as the nature and importance of the decision made or the law being enacted and its impact or effect on the general public, time, expense and urgency of the law to be enacted.22 However, saving time and money in itself does not justify the act of not carrying out meaningful public participation.

public_participation

Public participation must be real and not illusionary.23 Since it is a constitutional principle, it qualifies it to be a constitutional right, and as such it should not be a mirage. The illusionary concept of public participation may also be in the form of misleading information being given to the public to make them believe that they are engaging in public participation in a process that is the end product is already decided.24 This is akin to manipulation of the public. As SCORK correctly held public participation should not be conducted for “cosmetic” purposes. It emphasised that public participation “is not a mere formality to be undertaken as a matter of  course to fulfil a constitutional requirement.

There is a need for both quantitative and qualitative components of public participation”. Quantitative is the number of citizens engaged in public participation while qualitative aspect refers to the ideas submitted by the public to the public entity for purposes of public participation.

Public participation does not exist in a vacuum, as it must be influenced by the public who are not part of the legislature. This is the rationale behind SCORK’s holding that “it is not an abstract notion; it must be purposeful and meaningful.”25 The meaning of public participation is anchored on reasonable notice and reasonable opportunity that accompanies public participation. It should not be rushed just to comply with the constitutional mandate but not achieve the tenor and purpose of public participation. As outlined in the BAT decision the components of public participation include “clarity of the subject matter for the public to understand” such as the framed questions should not be ambiguous and general, a medium of engagement of public participation that is clear and simple, opportunity for balanced influence from the public in general, commitment to the process, inclusive and effective representation, integrity and transparency of the process and capacity to engage on the part of the public including giving the public access to information that will enable them to engage meaningfully.26

Public participation in the governance structure

 

Public participation has been entrenched in the Constitution of Kenya as a principle of governance binding all state organs and all persons when they are interpreting or applying the Constitution, enacting, applying or interpreting any law and making or implementing public policy decisions.27 SCORK in the BAT case held that public participation is “anchored on the principle of the sovereignty of the people”.28 As earlier argued in the introductory part, SCORK meant that in the governance structure, the people are the principals; the appointing authority and the leaders are the agents. Thus, any power they exercise is delegated to them under the Constitution by the people. However, by the inclusion of public participation as a principle of governance, the people of Kenya implied that the agents who are the leaders should always refer to the appointing authority before making any decisions such as enacting laws or making policies.29 Therefore, public participation is a limitation of how the leaders should exercise the power donated to them by the people.

The donation of the sovereign power by people to their leaders under the Constitution is not absolute. In the Doctors for Life case, the South African Constitutional Court held that by the mere fact that the Constitution mandates the legislature to conduct public participation before enactment of any law, then through these provisions the “people reserved for themselves part of the sovereign authority that they otherwise delegated to the representative bodies they created”.30 Nevertheless, he who delegates power can exercise such a power. This is further buttressed by the United States of America Supreme Court in Re City of Eastlake, when it held that “all power derives from the people, who can delegate it to representative instruments which they create. In establishing legislative bodies, the people can reserve to themselves the power to deal directly with matters which might otherwise be assigned to the legislature”.31 Reserve of public power applies to all states that have entrenched and recognised the right to political participation such as Kenya.32 In Kenya, such a sovereign power is impliedly shared between the people and the legislature as held by the Supreme Court that:

“Public participation and consultation are a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both National and County Governments.”

diverse public participation

As discussed above, it is undeniable that public participation is the concept of people’s power against undemocratic and totalitarian governments. It is through this power that the people hold the government accountable. SCORK in the Matter of the National Land Commission held that “the participation of the people in in governance will make the state, its organs, and institutions accountable”.

It further held in the BAT case that our democratic government is partly representative and partly democratic hence it should be accountable, responsive and transparent through public participation.34 The involvement of the people achieves accountability through transparency, as where the citizens are involved in decision making there is transparency in how decisions are made. This makes it easier to hold decision-makers accountable for their actions as nothing is done in darkness or secrecy.

Additionally, accountability is achieved due to checks and balances. Once the people are consulted through public participation, government is less likely to make decisions that are not in the public interest as they know, they will be held accountable by the public. SCORK in the Matter of The National Land Commission ruled that the soul of checks and balances converges on the principle of public participation. It held:

“It is to be noted that, the very essence of checks and balances touches on the principle of public participation, inclusiveness, integrity, accountability, and transparency; and the performance of the constitutional and statutory functions is to be in line with values of integrity, transparency, good governance and accountability.”

 Thus, by entrenching public participation as a national value in the Constitution, Kenya migrated from a moment of “government knows it all” to an era where government officials are not infallible as they can fall into making erroneous decisions. By participating in public participation, ordinary citizens can influence the kind of decisions made by enriching government officials with diverse views. As argued by the Internal Commission of Jurists-Kenya, “by participating in public affairs, citizens and stakeholders can influence decisions, policies and legislation and provide oversight for service delivery, development and governance”.36 The influence of citizens’ and stakeholders’ views in decision-making and legislating is a testimony that the people never intended to give their sovereign authority to government officials but, they intended a government where the leaders would be accountable to them through public consultation. A perfect example is that while the legislative power is donated to parliament, it is limited in a manner that it must facilitate public participation and the onus of ensuring public participation is conducted rests with it.37

In Kenya’s governance structure under the 2010 constitutional dispensation, the place of public participation is undeniably at the core and centre of governance. Actually, the process of making the 2010 Constitution was anchored in public participation. Chief Justice Willy Mutunga (as he then was) in the National Land Commission traced the place of the people in the Constitution- making process and concluded that it lies in public participation. He writes that:

“In the entire history of Constitution- making in Kenya, the participation of the people was a fundamental pillar. That is why it has been argued that the making of Kenya’s Constitution of 2010 is a story of ordinary citizens striving to overthrow, and succeeding in overthrowing the existing social order, and then defining a new social, economic, political, and cultural order for themselves. It is, indeed, a story of the rejection of 200 Parliamentary amendments by the Kenyan elite that sought to subvert the sovereign will of the Kenyan population. 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. With devolution being implemented under the Constitution, the participation of the people in governance will make the State, its organs and institutions accountable, thus making the country more progressive and stable. The role of the Courts, whose judicial authority is derived from the people of Kenya, is the indestructible fidelity to the value and principle of public participation.”38

 The upshot of this is that public participation is “a major pillar and bedrock” of Kenya’s governance structure.39 This translates to the fact that the people arethe sovereign and government leaders’ power is transient. Since their power is transient, the only people with perpetual succession in decision-making of matters pertaining the public are the people. The reason is that it is assumed they will not make decisions for convenience purposes as the decisions made will affect them even after such public officers cease to hold such offices. The sovereign power that the people hold is not transient as one of the characteristics of sovereign power is its permanency.40 Therefore, the people when consulted through public participation will make a decision alive to the fact that such a decision will bind them for long and such a decision will be in public interest and not self-interest. They are most likely to take into account intergenerational equity.

Public participation, as provided for in Article 10 (d), promotes sustainable development.41 As argued by Yinuo, sustainable development is the ability of “meeting present needs without compromising the chances of the future generations to meet their needs.”42 SCORK in BAT case held that “public participation is the cornerstone of sustainable development”, it further held that public participation is the only panacea to ailing sustainable development. It held that:

“…public participation ensures that private “sweetheart” deals, secret contracting processes, skewed sharing of benefits- generally a contract and investment regime enveloped in non-disclosure, do not happen. Thus, threats to both political stability and sustainable development are nipped in the bud by public participation.”

 The tension between representative democracy and participatory democracy?

 The language in Article 118 requires a balanced relationship and co-existence between representative and participatory democracy in the governance structure.43 The mutual co-existence between representative and participatory democracy lies at the heart of decision, law and policy-making. Of interest, is that the onus to exercise discretion and ensure that this balance has been achieved was constitutionally placed on the legislature.44 This, however, does not imply that since the people delegated the discretionary powers to the legislature thus their decisions should not be subject to checks for accountability. The judiciary through the courts was extensively armed to address such wrongs.

Similarly, since public participation is the only way available through which the people can exercise their sovereign authority, if parliament fails to conduct meaningful public participation the people can decide to recall their leaders. Such a drastic measure but justified as failure to carry out public participation shows that the legislature views the sovereign people as not adult enough to make their views heard or taken into account. This was reiterated by SCORK in Re Communications Commission of Kenya, where it held that public participation is a sign that the government appreciates that “the Kenyan citizenry is adult enough to know what is right”.45

As earlier noted herein, the governance structure of Kenya is partly representative democracy and partly participatory democracy, the summation is that they should always work in harmony to achieve public good. The law, decision or policy made will be meaningless due to a lack of meaningful public participation. The phrase that the legislature shall “facilitate public participation and consultation”46 means that in a constitutional democracy like Kenya’s, there should be a harmonisation of both representative democracy and participatory democracy. The history of Kenya’s governance structure in the 1980s and 1990s testified to the negative impact of absolute representative democracy, where parliament not only enacted laws contrary to what the public preferred but also amended the Constitution without consulting the primary constituent power.47

The reference to the primary constituent power is essential because it is the people’s acceptance and ownership that grants democratic legitimacy to a law, decision or policy. It therefore means that the process of law-making should encompass inclusivity and public involvement.48 Interestingly, representative democracy makes sure that participatory democracy is achieved which in turn participatory democracy when practiced is a condition precedent to legitimise all the decisions made under representative democracy. It is through public participation that the citizenry will counter government excesses and counter anti-majoritarian and totalitarian regimes. Subsequently, by entrenching public participation as a national value, the Constitution was alive to the fact that power corrupts and those in power are likely to be corrupted by power to the extent that they will lose their sobriety more so when it comes to decision-making. Is public participation in Kenya’s governance cosmetic?

Public participation is not only enshrined in the Constitution of Kenya as a national value and as a principle of governance49 but also as a legislative-making principle50 and as a value and principle of public service.51 As a national value and principle of governance, the application of public participation is very broad as it binds all citizens when they apply or interpret the Constitution, enact, apply or interpret any law and when making or implementing public policy decisions.52 Since the area of operation of the Constitution is Kenya, thus anybody within the republic of Kenya who either applies the Constitution, any  law or public policy is obligated to abide by the principle of public participation. An example is if a foreign company wants to carry out any activity within Kenya that will have an impact on the environment, the onus is on it to carry out public participation alongside environmental impact assessment.

Additionally, the Constitution enshrined public participation as a conditional precedent to law enactment and policy making. In the latter, public participation is qualified as a value and principle of public service.53 This is despite the qualification of public participation earlier in Article 10 as a national value and principle of governance to guide all populace within Kenya.
The repetitive manner in which public participation is protected in the Constitution illustrates the extent and manner in which public participation is valued by the Kenyan citizenry. It is the only value that is overwhelmingly guided. To confirm this is the numerous court orders though made in passing that the judiciary has offered an advisory opinion to the legislature to consider enacting a public participation law including the BAT case among others.54 However, despite some attempts by the legislature to try and enact such a law, the bill never came into existence.55

Considering the above background and fourteen years since the promulgation of the Constitution of Kenya and the failure of the legislature to enact a law to promote the achievement of public participation.
The question that begs for an answer is: is public participation in Kenya’s governance structure a mirage or meant to serve cosmetic purposes? This question can be answered in the affirmative since there is no substantive law that provides how public participation should be carried out. However, Courts have developed numerous jurisprudences to bridge that gap. In BAT case, SCORK oversaw the possibility of public participation being illusionary.56 Therefore, it laid down the guiding principles to bring much-needed clarity in pursuit of formulating a realistic approach to public participation. As argued by Genga, SCORK “emphasized that public participation must be real and not illusory; it is not a cosmetic or a public relations act. That public participation is not a mere formality to be undertaken as a matter of course just to ‘fulfil’ a constitutional requirement”.57 This is a clear indication that SCORK envisaged a scenario where public participation will remain to be illusionary.

Interestingly, the legislature has attempted to make some additions to a bill after public participation.58 Once any addition is to be made to the bill after public participation, a reasonable man expects the additions to be subjected to public participation. This should be so because public participation is a condition precedent of legislating and due to the legitimate expectation created by parliament to subject the bill to public participation before the additions.

In the case of Mwaura Kabata & Others vs National Assembly & Others, this was the crux of the petition.59 Surprisingly, the High Court of Kenya dismissed the petition holding that the additions were lawfully done.60 The court was guided by the National Assembly’s standing orders that provide that during the second reading, a bill may contain new clauses as long as they do not alter the subject matter of the Bill.61 In my view, this interpretation was an attempt to water down the purpose of public participation thus reducing it to be illusionary and for cosmetic purposes.

The legislature is likely to conduct public participation with ill intention that during the second reading of the bill, they will add clauses that are well within the subject matter but contrary to what the public submitted during public participation.

However, the High Court departed from that reasoning in Matindi vs CS, National Treasury & Planning & 4 Others, where it held that public participation is very important in the governance structure that it cannot be waived.62 Further, the court emphasized that the wider the effect the more the need to subject such a law or policy to public participation and that Parliament has no powers to waive public participation.63 This decision placed public participation where it is supposed to be in the governance structure—at the top. In Kenya, public participation is an overriding principle where a decision, policy or law is to be made. This principle cannot be waived and where waived, any decision made thereafter lacks legal basis as it is public participation that breathes life into public decisions, policies or laws.

In Matindi & 3 Others vs President of the Republic of Kenya & 4 Others, it was held where an original proposal was subjected to public participation any expansion on the same must also be subjected to public participation.64 Additionally, the court was emphatic that public participation must be real and cover all areas of governance.65 The effect of this decision is that once public participation has been conducted any extrapolation on the same should be subjected to public participation. Considering the cases discussed above and taking into account the guiding principles of public participation laid down the BAT Case, it is evident that public participation in Kenya is real and not illusionary, a mere formality or for cosmetic purposes.

Values of public participation

Kenya as a democratic society is clearly illustrated by the recognition of the right to sovereignty and the inalienable right to determine the form of governance and fully participate in the law-making process.66 The people can exercise their sovereign power either directly or indirectly through their democratically elected representatives. The Constitution of Kenya establishes public participation as one of the national values and principles of governance.67 In both Article 20(4) and 24(1), the Constitution is clear that the state authorities whether courts, tribunals or other authorities must interpret the Constitution per the values of an open and democratic society based on human dignity, equality, equity and freedom. Thus, the people of Kenya have by adopting the Constitution chosen to
be governed in an open and democratic system.

The core values of public participation include the right to participate by recognising the rights of those affected by policies, laws or projects to participate in the decision-making process concerning them.68 Responsiveness through ensuring participation will influence the relevant decisions. Accountability through giving feedback to the participants on their contribution and providing regular progress reports.69 Inclusivity by ensuring all the affected parties are involved including those with disabilities that limit their capacity to participate the poor, children, women (in some cultural setup) and minorities. Transparency through timely disclosure of all necessary information to participants for meaningful participation.70 Consultation through seeking input from the affected in designing the process of participation and accessibility through public consultations to be conducted at accessible venue taking into consideration persons living with disabilities.

Challenges to public participation

Effective public participation requires an open, accountable and structured process where the public can interact and influence decisions. However, various challenges exist that hinder public participation. They include the cost of public participation since resources such as finances, human resources and time are required to have meaningful public participation. These are always in limited supply.71 Lack of time as people spend most of their time in earning a living.72 Thus, it becomes a challenge to have them attend public forums. Accessibility, where meeting venues at times may not be accessible, especially by people living with disabilities and or due to geographical distance, may require people to spend money for public or own transport.73

Lack of trust such as where members of the public may have no confidence in those in leadership positions leading to lack of interest when meetings are planned. Lack of national policy or legislation guiding how public participation should be conducted.74 Setting enforceable norms and standards for public participation is more difficult in the absence of such frameworks. This has led to a lack of adequate civic education on the importance of participating in matters affecting the public since there is no legal framework to guide on how civic education should be conducted and to which degree.

Conclusion

Public participation is the crux of good governance. It is at the centre of the governance structure as it is an overriding principle in all governance matters. As an overriding principle, it means that there is no public policy or law that can be made without being subjected to public participation. The effect of subjecting policy decisions and laws to public participation is that they achieve legitimacy, and promote accountability and sustainable development among others. The fact that it is a national value and principle of governance that binds all public officers, state organs and all people while applying or implementing the Constitution, enacting, applying or interpreting and law or implementing or making any policy decision places it at the top of the hierarchy in the governance structure. This is so because it is the only way that the people can exercise their sovereignty. Public participation also reminds the citizenry that they should be actively engaged to check the limits and actions of their leaders.