Long before recent calls by Raila Odinga for a national conclave on intergenerational dialogue and the formation of a “broad-based government”, Kenya experienced a similar political arrangement.  The political truce between the former Prime Minister and former President Uhuru Kenyatta, commonly referred to as the Handshake era, led to one of the most contentious outcomes of that alliance: the Constitution of Kenya (Amendment) Bill, 2020.

The constitutionality of the Building Bridges Initiative (BBI) process was vigorously challenged in court, with the matter progressing from the High Court to the Supreme Court. Among the key constitutional questions was whether the process complied with the principles of public participation under Article 10 of the Constitution.

The Supreme Court majority ruled that the BBI process fell short of meeting the constitutional threshold for meaningful public participation. While some public engagement occurred during the early stages, the Court found that the public was not sufficiently involved in critical aspects, particularly concerning the Second Schedule of the Amendment Bill, which addressed the number and delimitation of constituencies.

Lack of public participation has since become a major obstacle for several bills initiated by the Executive in recent years, delaying their implementation. For example, the High Court declared the Social Health Insurance Act (SHIA), the Primary Health Care Act, and the Digital Health Act unlawful for failing to undergo adequate public participation. However, the Court of Appeal later reversed this decision.

It follows that the government has embarked on establishing a comprehensive legal framework to govern public participation. Although the original Public Participation Bill of 2024 lapsed due to procedural delays, the Attorney General has since initiated consultations for a new Public Participation Bill in 2025. This iteration seeks to adhere closely to the principles articulated by the Supreme Court in the landmark British American Tobacco (BAT) Kenya case.

In that case, the Supreme Court underscored that the absence of a prescribed legal framework cannot justify the failure to conduct meaningful public participation. The Court elaborated that several essential elements characterise genuine public participation. First, the subject matter must be communicated to the public in a manner that facilitates understanding. Second, the structures and processes for engagement should be straightforward and accessible. Third, the opportunity for participation must be afforded to all segments of the public. Moreover, the process requires an inclusive approach that embraces diverse stakeholders. Finally, meaningful participation necessitates building the capacity of the public to engage effectively, which includes prior sensitisation and education on the issues at hand.

While the necessity of legislating a constitutional imperative such as public participation may be debated, the proposed Bill aims to formalise and standardise the process by establishing clear procedural requirements. In line with the principles articulated in the British American Tobacco (BAT) Kenya case, the Bill outlines guidelines under Clause 5 that must inform the design of any public participation process. These include: the nature and urgency of the matter under consideration, its potential impact on the public, the need for inclusive and effective representation, the number of people likely to be affected, and the extent to which members of the public can access relevant information and participate in the forum.

It also requires responsible authorities (conducting public participation ) to ensure that proposals and summaries of information are publicly accessible in user-friendly formats. Notices must be published in newspapers with nationwide circulation, on official websites, and through other accessible platforms. The process must also provide mechanisms for the public to submit their views and ensure that venues and media used are inclusive, particularly for persons with disabilities.

Within seven days of completing a public participation exercise, a detailed report must be formulated. This report must include: the individuals or groups likely to be affected; attendance records from any public meetings; the methods and languages used to receive public input; the timeframe allocated for submissions; and an explanation of how the responsible authority considered various socioeconomic, religious, ethnic, and knowledge-based factors. The report must also demonstrate how the authority responded to public feedback and ensured that the process was inclusive and accessible, especially for persons with disabilities.

The Bill also proposes the establishment of the Office of the Public Participation Registrar, to be housed within the public service. The Registrar will be responsible for receiving and approving public participation plans submitted by responsible authorities and maintaining a register of both the plans and corresponding reports. Additionally, the office will be tasked with developing and implementing a monitoring, evaluation, assessment, and learning framework for public participation.

A notable feature of the Bill is the provision of rights for members of the public or stakeholders. It explicitly provides that individuals may submit their views either orally or in writing to the relevant responsible authority, and must be accorded adequate time to do so. Importantly, the process must be free from any form of interruption, intimidation, coercion, or undue influence.

The proposed complaints redress mechanism may require further strengthening. Under the bill, any person who believes that the conduct of public participation has not been followed may lodge a complaint with the Registrar. Once received, the Registrar is required to assess the complaint within seven days to determine whether it meets the formal legal requirements. If the complaint is deemed valid and falls within the Registrar’s jurisdiction, the Registrar will liaise with the relevant responsible authority to investigate and address the matter. The outcome of the process must be communicated to the complainant in writing. Finally, to enhance transparency and accountability, the Registrar is mandated to maintain a public register containing all complaints.

There needs to be an appellate mechanism to allow individuals to escalate their grievances to another administrative body, such as the Commission on Administrative Justice (CAJ) or the High Court, in cases where the Registrar fails to adequately address concerns regarding public participation. Simply documenting the process is insufficient.

A more pressing concern lies in the lack of clarity regarding institutional oversight. The bill designates the Cabinet Secretary in charge of public participation as the overall authority, without designating the ministry. Granted, public participation is a cross-cutting constitutional obligation that should be embedded in all public processes and institutions. Oversight, therefore, should rest with an independent or inter-agency institutional framework to avoid conflicts of interest and ensure consistent enforcement across sectors. 

In its current form, the Bill represents a step forward in formalising public participation, but it leaves critical gaps in accountability and institutional independence. Without a clear appellate mechanism or a neutral oversight body, the risk remains that participation will be reduced to a mere formality rather than a genuine democratic process.