The judgment by the Court of Appeal annulling the Finance Act, 2023, caught the Government by surprise. While it has been appealed, giving the tax collector some relief, it brought back to debate public participation. 

The Constitution of Kenya, promulgated in 2010, enshrines the principle of public participation as a core value and principle of governance. Article 10(2)(a) of the Constitution explicitly states that the participation of the people is a national value. This provision has elevated public participation from a mere ideal to a legal obligation for all state organs.  

Despite the constitutional recognition, the actual practice of public participation in Kenya remains a work in progress, almost 15 years since the promulgation of the Constitution. 

Along with the Finance Act, 2023, the implementation of the Social Health Insurance Fund Act and related laws has also been coloured by judgements critical of the manner in which they went through the legislative pipeline. 

What exactly is public participation, and how should law and policymakers handle it? 

Defining and tracing the origins of public participation

Public participation, a cornerstone of democratic governance, signifies the active involvement of citizens in decision-making processes that affect their lives. It is a mechanism through which the public can influence policies, programs, and projects. This essay delves into the concept of public participation, tracing its philosophical roots, examining its implementation in Kenya, and comparing it with advanced jurisdictions like the United Kingdom. A critical distinction between public participation and public involvement will be drawn, underscoring the importance of meaningful citizen engagement.  

Despite it gaining credence in recent decades, the origin of public participation can be traced to the annals of philosophical thoughts. Its earliest traces can be observed in the democratic ideals of ancient Greece, where citizens were actively involved in the governance of their city-states. The notion of direct democracy, with its emphasis on collective decision-making and the importance of the public sphere, laid the groundwork for subsequent developments in participatory governance.  

Subsequently, the Age of Enlightenment, embodied by proponents of rational thought like John Locke, Jean-Jacques Rousseau, and Immanuel Kant contributed to the growth of the concept. Their emphasis on the inherent rights of individuals and their capacity for rational thought, presented a challenge to the notion of absolute monarchy and paved the way for representative democracies, where citizens could indirectly participate in governance through elected representatives. While these systems did not fully realize the potential for direct public engagement, they nevertheless recognized the importance of public opinion and consent.

The 19th and 20th centuries marked further evolution of the concept of public participation. The rise of social movements and the increasing complexity of societal challenges characterized by the labor movement, civil rights activism, and environmentalism highlighted the need for greater public involvement in decision-making processes. These movements challenged traditional power structures and demanded greater accountability from governments. This period also witnessed the development of participatory democracy theories, which emphasized the importance of citizen participation as a means of empowering marginalized groups and promoting social justice.

Furthermore, the concept of public participation is closely linked to human rights. The Universal Declaration of Human Rights recognizes the right to participate in government. International covenants on civil and political rights also enshrine this right. Thus, public participation is not merely a procedural requirement but a fundamental human right.  

Public participation vs. public involvement

Time and time again, more so in practical sense, it has been an arduous task to distinguish between public participation and public involvement. This difficulty has largely been the cause of some of the crises the country finds itself in.

Public involvement is a broader term that encompasses a range of activities, including information provision, consultation, and public awareness. While public involvement is essential, it does not necessarily translate into meaningful citizen influence.

Public participation, on the other hand, implies a more substantive level of citizen engagement. It involves sharing power with the public, allowing them to influence decisions, and holding decision-makers accountable. Public participation goes beyond mere consultation and seeks to create a partnership between the government and the public.

The Kenyan approach 

Kenya has adopted a mixed approach to public participation, combining elements of both deliberative and representative democracy. Deliberative democracy emphasizes dialogue and consensus-building, while representative democracy relies on elected representatives to make decisions on behalf of the people.

The Kenyan approach primarily involves consultative mechanisms, such as public hearings, forums, and surveys. While these methods provide opportunities for public input, they often fall short of empowering citizens to meaningfully influence decisions. There is a need to move beyond consultation and towards more participatory approaches that give citizens a genuine say in decision-making.

The question policymakers are now trying to crack is: what amounts to effective public participation?

The court in of Republic v County Government of Kiambu Ex parte Robert Gakuru & another [2016] eKLR, the High Court laid out the principles of public participation as in this excerpt:

“……public participation ought not to be equated with mere consultation. Whereas “consultation” is defined by Black’s Law Dictionary 9th Edn. at page 358 as “the act of asking the advice or opinion of someone”, “participation” on the other hand is defined at page 1229 thereof as “the act of taking part in something, such as partnership…” Therefore, public participation is not a mere cosmetic venture or a public relations exercise. In my view, whereas it is not to be expected that the legislature would be beholden to the public in a manner which enslaves it to the public, to contend that public views ought not to count at all in making a decision whether or not a draft bill ought to be enacted would be to negate the spirit of public participation as enshrined in the Constitution. In my view public views ought to be considered in the decision-making process and as far as possible the product of the legislative process ought to be a true reflection of the public participation so that the end product bears the seal of approval by the public…”

Based on the above, effective public participation encompasses the following key elements:

1. Requires clear and accessible information about proposed policies, programs, or projects.
2. Involves meaningful consultation, where citizens have an opportunity to express their views and concerns.
3. Entails genuine consideration of public input in decision-making.
4. Promotes transparency and accountability in the decision-making process.
5. Builds trust between the government and the public, as the end-product of the public participation exercise mirrors public opinion and comments.

Comparative Analysis: Kenya and the UK

The UK has a long history of public participation, with a more developed framework for citizen engagement compared to Kenya. The UK has established institutions and processes for public participation, such as the Public Consultation Act, which provides a clear legal framework for consultations. Kenya’s Parliament is currently considering the Public Participation Bill, 2024. 

Furthermore, the UK has a strong tradition of civil society organizations, which play a vital role in mobilizing citizens and holding the government accountable. In contrast, civil society in Kenya is still developing, and its capacity to influence public policy is limited.

While the UK has made significant progress in public participation, challenges remain. Issues such as unequal access to information and power imbalances between citizens and government continue to hinder effective participation.

Conclusion

Public participation is essential for good governance and sustainable development. It is a means of empowering citizens, promoting transparency, and building trust between the government and the public. While Kenya has made strides in recognizing the importance of public participation, there is still significant room for improvement.

Effective public participation does not only connote having fora for hearing and taking public opinion. As courts have held and reiterated, the product of a public participation exercise needs to be reflective and indicative of public opinion. Simply put, it is not an exercise to tick boxes. Among the reasons significant parts of the Finance Act 2023 were annulled was because they had been introduced on the floor of the House by MPs after public participation, and had therefore not been subjected to public scrutiny and input. Also, the Finance Committee did not explain why some of the input by the public had been rejected and left out of the Bill. 

More fundamentally, to enhance public participation in Kenya, it is imperative to strengthen the legal and institutional framework, build capacity among citizens and government officials, and promote a culture of participatory governance. 

By learning from the experiences of advanced jurisdictions like the UK, Kenya can develop a robust public participation system that delivers tangible benefits to its citizens.