Following the Court of Appeal’s declaration of the Finance Act, 2023 as unconstitutional, the National Assembly has been accused of failing to adhere to the dictates of the Constitution on public participation.

Court of Appeal judges Kathurima M’Inoti, Agnes Kalekye Murgor and John Mativo, on July 31, 2024, ruled that the Finance Act, 2023 was fundamentally flawed and, therefore, void and unconstitutional.

According to the Appellate Court, the national values and principles of governance under Article 10 (2) (c) of the Constitution – transparency and accountability – were not complied with.

“Perhaps we should underscore that the transparency and accountability contemplated in this provision are owed to the people of Kenya in whom sovereign powers reposes under Article 1, and it is expected from State organs, State officers, public officers and all persons whenever any of them performs any of the functions listed in Article 10 (2),” the three-judge bench said.

Therefore, the requirement for transparency and accountability from any of the organs or persons listed above, including Parliament as a State organ and parliamentarians as State officers, is not a matter of choice but a mandatory constitutional imperative.

Public participation is not an inconsequential process or a sheer formality. The three-judge bench said the constitution embraces a radical form of participatory democracy. “For instance, it recognises the importance of participatory democracy in the context of meaningful public engagement in governance and decision-making processes, including enactment of legislation and formulation of policies which affect their rights and day-to-day lives.”

The Appellate Court noted that it would be strange indeed if the principles of participatory democracy and consultation were to operate only when the public is invited to give their views, then they vanish at the crucial stage when the general principles of the original statute are being converted into operational standards and procedures, only to resurface at the stage of the implementation of the provisions impacting on specific individuals without any explanation as to why their views were rejected.

The justification for public participation is to facilitate public involvement as a crucial aspect of participatory democracy and legitimacy. The court found that vesting in Parliament’s arbitrary power to reject or ignore its contribution without explanation or justification is the surest way of undermining public participation.

It further stated that insulating Parliament from the obligation to give reasons or justification for rejecting the views of the public is the surest way of rendering public participation illusory, cosmetic and a mere formality or public relations exercise, which the Supreme Court and the Court of Appeal have loudly declared it is not.

Therefore, when determining whether public participation as a prerequisite to the determination of policy by a State organ has been complied with, one must ascertain whether it has been conducted in a manner that rationally connects the consultation with the constitutional purpose of accountability, responsiveness and transparency.

“We see no superimposed judicial stratagem of undermining the separation of powers by upholding the explicit provisions of transparency and accountability prescribed in Article 10 (2) (c). Accordingly, we find that Parliament, after conducting public participation, is obligated to give reasons for rejecting or adopting the proposals received. The import of this finding is that the ensuing Act offended Article 10 (1) and (2) (c). It is, therefore, our conclusion that failure to adhere to the dictates of Article 10 (1) and (2) (c) renders the process leading to the enactment of the Act flawed,” the three-judge bench unanimously stated.

Public participation

The International Association for Public Participation defines it as the involvement of those affected by a decision in the decision-making process. Public participation encompasses a range of public involvement, from simply informing people about what Parliament is doing to delegating decisions to the public.

Public participation is one of the fundamental principles of democracy, which is premised on the idea that all citizens are equally entitled to have a say in decisions affecting their lives. Citizens’ participation in government decision-making is fundamental to the functioning of a democratic system of governance, as stated in chapter one of the Constitution of Kenya 2010.

Public participation in the legislative activities of Parliament is a fundamental constitutional principle.

Through public participation, there is citizen empowerment, generation of new ideas, diverse and innovative ideas and actions, enhancement of citizen-government relations, legitimation of government programmes, appropriate prioritisation of projects, improved delivery of public services and government responsiveness.

The importance of public participation is captured in Article 118 of the Constitution, which mandates Parliament to facilitate public participation and involvement in the legislative and other business of Parliament and its committees. Citizen involvement in policymaking and implementation strengthens and deepens good governance.

International and regional agreements

Kenya is a signatory to international and regional agreements in public participation that are spurring the government to take steps to improve transparency, participation, and accountability.

At the 1992 Earth Summit in Rio, Brazil, nations from around the world, Kenya included, adopted Principle 10 of the Rio Declaration, which emphasises the importance of public access to information and participation in decision-making processes.

Additionally, in Agenda 21, the plan of action that accompanied the Rio Declaration, governments pledged to pursue broader public participation in decision-making processes and policy formulation for sustainable development.

The Manila Declaration (1982) and the African Charter for Popular Participation in Development and Transformation (1990) are further examples of the trend towards enhancing public participation.