GHAI: How can Kenya move to a better system of public participation?

A remarkable number of laws and government decisions have been held unconstitutional by courts because of the inadequacy of public participation, or PP.

Several cases have held it unconstitutional to change administrative boundaries, such as subcounties or locations, without PP.

The Public Service Commission’s Policy on Decentralisation of Human Resource Management in the Civil Service was invalid for want of public participation in its “formulation and formation”.

Many statutes thus have been held unconstitutional, particularly at the county level. And at the national level, you will probably remember the Finance Act 2023 was initially held unconstitutional – but reinstated by the Supreme Court.

The legislation backing up the new health system with SHA and SHIF was held unconstitutional, although the decision was reversed on appeal.

The High Court declared the new university funding model unconstitutional for want of participation – as well as being discriminatory. And the Affordable Housing Act has been argued to be unconstitutional.

CONFUSION AND WASTE

Imagine the waste of resources this causes – not least because of the huge fees undoubtedly paid to lawyers. Worse is the confusion for Kenyans – both caused by the passing of laws and making of decisions that they have not had adequate information about, let alone a chance to comment on, and then the confusion introduced by programmes being suspended, or maybe not, as the government decides what to do.

WHY PARTICIPATION?

The first reason is, of course, that the Constitution requires it. But why does it do so? It is one aspect of the intention to use the constitution to change Kenya radically.

The Constitution of Kenya Review Commission said in its short report in 2003, “The whole nation feels alienated from the government and structures of authority. People feel neglected, and victimised. They consider they have no control over their life or destiny. Outside elections, participation is almost non-existent.”

And later, “We have tried to place the people at the centre of the Constitution — constantly emphasising people’s participation; bringing power closer to them; giving them greater control over their everyday lives.”

It is not only a matter of more participatory democracy. Greater involvement should produce better understanding on the part of people, less resistance because laws and policies are understood.

The decisions made should be better because there has been more input, including by those most affected. And because public participation must mean that government has to inform the people what is happening, and to explain to them why certain things are being considered, there should be deeper consideration of the issues within government.

Hopefully, decisions will be made more on the basis of the value to the nation than to the people making the decisions. The sort of hasty, ill-thought-through decisions that we have seen over issues such as CBC, SHA, university funding, and so on should be things of the past.

PARTICIPATION HOW?

What it must not be is some sort of box-ticking formality. The courts have done a great deal to explain, and require what PP involves. And there have been a number of publications, including The Status of Public Participation by the Intergovernmental Relations Technical Committee in 2017, a guide for counties by the Ministry of Devolution and a National Policy in late 2023.

Many counties have produced their own Public Participation Acts. And there have been many Bills at the national level, including Bills dated 2016, 2018, three dated 2019, 2023 and 2024. They have not all been the same. The 2023 Bill lapsed – according to Arnold Osano on X, “The National Assembly Departmental Committee on Parliamentary Broadcasting and Library failed to conduct its committee hearings.”

That Bill was rather general, giving [insufficient] guidance on what public participation requires. One might doubt what it would have achieved. However, there is a draft PP Bill from last year, not yet introduced into Parliament.

A NEW IDEA

But so far, it does not say much about principles of good PP. It would set up a body – the Registrar of PP. The scheme is that any government agency planning a project, policy, programme or law must inform the registrar, providing a participation plan.

The registrar must consider reports of the participation exercises and whether they satisfied the Act. It’s not clear what happens if the registrar is not satisfied. Nor is it clear whether the registrar may direct changes in the PP exercise before it takes place.

The Bill does say that the registrar may recommend to responsible authorities measures to be taken to ensure compliance with this Act and may conduct capacity building. But can it insist? This is perhaps promising, but this Bill, I suggest, needs a good deal of work before it will do what is needed. Rather than being a unit within a ministry, I suggest it not be tied to the public service.

Perhaps it could be within the Commission on Administrative Justice [CAJ, the Ombudsman’s office] – which is a ready the agency to deal with complaints over access to information that have many connections with public participation. But it would need firmer powers than the CAJ.

It should be clear that the agency must be a mine of information about conducting PP. It should publish guidance on issues such as – language in PP, PP in rural areas, how to ensure that women can participate, how to explain complex issues in language that people can understand, while not being too general or vague, and PP by children.

It would need to produce regulations about what actions must include PP. What is too technical (there is a court case on this), and covering more than laws, policies programmes and projects – decisions as to boundaries, for example, do not fit into any of these categories.

And it should have clear powers to instruct changes in proposed PP programmes, and to refuse to approve what has been done, with the result that a policy, programme and others must not be carried out until PP has been adequate. It cannot take over the job of the courts, but the idea is that court cases should become much rarer.

What we need (as in other areas of the constitution) is compliance with the constitution not just expensive and longdrawn out court cases after failure to do so. And the Act should include principles of PP, which will be elaborated in the work of the agency.

Court cases and the many precedents here and internationally will help. Unfortunately, this cannot deal with the issue of Parliament and is often inadequate concerning PP.

For a start, I do not imagine Parliament would pass a law that put it under this agency’s control. Secondly, the constitution gives Parliament the power to make its rules of procedure. But courts have held Parliament’s Standing Orders to be unconstitutional in a few cases.

FINAL THOUGHT

It was a central concern of the constitution-makers that democracy should not be a once-every-five-years thing. Ironically, politicians spend most of their five years in office focused on the next election, which they do not somehow expect to win by the quality of their decision making.

I had been reluctant to accept the idea of a special office on PP – thinking that each agency must be able to work out what would be appropriate for their situation. But the reluctance to embrace this idea has convinced me that we should try such an office.

And a consciousness of how little we know (for example, about the SHA) persuades me that maybe a more structured and regulated system of PP would produce better decisions – and even save money as well.

Ghai is the Director, Katiba Institute (The author is expressing her personal opinion)