The Constitution Amendment Bill and Public Participation
Recently, the Constitution Amendment Bill was submitted by the Independent Electoral and Boundaries Commission to the 47 county assemblies in accordance with Article 257 of the Kenyan Constitution. The county assemblies are meant to consider the Bill within three months from the date it is submitted by the Commission. Upon approval, the county assembly may then submit a copy of the draft Bill jointly to the Speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it. Interestingly enough, the Siaya County Assembly has already approved the Constitutional Amendment Bill and unanimously passed the same barely a week after it was submitted by the IEBC. But was the process of public participation duly followed when passing the Bill?
Public participation is the process where individuals, government, and non-governmental groups influence decision making in policy, legislation, services delivery, oversight and development matters. This is as per the County Public Participation Guidelines published by the Ministry of Devolution and Planning in conjunction with the Council of Governors.
Public participation is a two-way interactive process where the duty bearer communicates information in a transparent and timely manner, engages the public in decision making, and is both responsive and accountable to their needs. Public participation therefore involves informing/educating the public, holding consultations with the public, receiving feedback from the public and considering/implementing the feedback given by the public when making decisions.
And public participation is grounded in the law. Article 1 of the Kenyan Constitution provides that all sovereign power belongs to the people of Kenya who shall exercise it directly, or through their democratically elected representatives. Article 10 (2) provides for public participation as one of our country’s national values and one of the principles of governance.
Article 118 of the Constitution requires the National Parliament to facilitate public participation and involvement in the legislative and other businesses of parliament and its committees. Article 196 (1)(b) requires county assemblies to facilitate public participation in the legislative and other businesses of the assemblies and their committees.
In Section 9 (1) of the County Governments Act, members of the county assemblies are required maintain close contact with the electorate and to consult with them on issues under discussion in the assemblies. Section 115 of the Act provides that the county governments should create structures, mechanisms and guidelines for citizen participation. They should also have safeguards against domination of the consultation by one group, whether politicians, elites, or Civil Society Organisations.
Kenya, with all its progressive legislations, has made strides in ensuring that the dream of public participation is actually achieved in the country. In 2016 the Attorney General’s office published the Kenya Draft Policy on Public Participation with some of its key policy areas being access to information, capacity building and feedback/reporting mechanisms, among others. In January 2016, the Council of Governors in conjunction with the Ministry of Devolution and Planning published the County Public Participation Guidelines meant to streamline public participation at the county level. Currently, there is a Public Participation Bill eagerly awaiting discussion in the Kenyan Senate.
Kenyan courts have also been involved in the discussion on public participation with their voice being heard the loudest in the Supreme Court case of Republic v Independent Electoral and Boundaries Commission ex-parte National Super Alliance (NASA) Kenya and 6 others (Al Ghurair case). The court stated that public participation is not a mere cosmetic venture or a public relations exercise. It is serious business. In Supreme Court Petition № 5 of 2017 British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health and 2 others, the courts set down some of the guiding principles for public participation and also the components of meaningful public participation. These include:
Guiding Principles for Public Participation
1. Public participation applies to all aspects of governance. (entrenched in article 10(2) of the constitution)
2. The public entity charged with performance of the duty bears the onus of ensuring and facilitating public participation.
3. Lack of a prescribed legal framework for a public participation is not an excuse for not conducting public participation (refer to 2 above).
4. Public participation has to be real and not illusory, not cosmetic. There is need for both quantitative and qualitative components in public participation.
5. Public participation has to be purposive and meaningful.
6. Public participation has to be accompanied by reasonable notice and reasonable opportunity.
7. Written submissions can also suffice for public participation.
8. Allegation of lack of public participation does not automatically vitiate the process. Mode, degree, scope and extent of public participation is to be determined case by case.
Components of meaningful public participation
1. Clarity of the subject matter for the public to understand.
2. Structures and processes (mediums of engagement and participation that were clear and simple).
3. Opportunity for balanced influence from the public in general.
4. Commitment to the process.
5. Inclusive and effective representation.
6. Integrity and transparency of the process
7. Capacity to engage on the part of the public, including that the public had to be first sensitized on the matter.
Recently, the IEBC submitted the Constitution Amendment Bill to the 47 county assemblies for consideration in accordance with article 257 of the Kenyan Constitution. Before voting on the bill however, the county assemblies ought to ensure that effective public participation is done. The Kenyan citizens ought to be given adequate time and information as regards the Bill so as to enable them participate effectively.
Interestingly enough, the County Assembly of Siaya has already considered, and passed the Bill within a week from the date it was submitted by the IEBC. This timeline seems hardly sufficient for effective public participation on the Bill, if at all there was any that was done.
In passing the Constitutional Amendment Bill, county assemblies ought to ensure that:
· They provide the public with reasonable notice and reasonable opportunity for participation.
· They accord citizens and lobby groups the opportunity for balanced influence.
· The entire process is overflowing with integrity and transparency.
Finally, it is necessary for the government - both the national government and the county governments - to undertake valid public participation in all matters that affect the public. Failure to which, the courts will be forced to overturn a lot of decisions that are taken, on the basis that no effective public participation was conducted prior to the making of the decision.
