Objectives

​ Definition of public participation

​ Historical approaches
​ Salient features used to measure public participation
​ Pre public participation
​ During public participation
​ Post public participation
​ Conflicting decisions
​ One-off process v whole process
​ Coverage consideration
​ People’s views
​ Discretion
​ Direct v indirect participation
​ Qualitative & quantitative
​ Application of reasonableness test
​ Finance bill @ SCoRK
​ Prevailing questions

●​ Constitutional provisions that account for public participation include:

-​ Article 1
-​ Article 10
-​ Article 69
-​ Article 118
-​ Article 169(1)(b)
-​ Article 184(1)(c)
-​ Article 201(a)

Definition of Public Participation

●​ We must first define deliberate democracy; this is a form of democracy where
decision-making is based on open, reasoned and inclusive discussions among
citizens.
●​ Public participation is a manifestation of deliberate democracy.
●​ Numerous people have attempted to define public participation; Arnstein defines
it as ‘the redistribution of power that enables have-not citizens to be deliberately
included in our future’; she further argues that public participation must give a
genuine opportunity to affect outcomes.
●​ Ghai agrees with Arnstein on the need to focus on the ability to affect outcomes;
Waterhouse argues for the importance of understanding theories of deliberate
democracy to understand the meaning of the concept of ‘meaningful
 participation’; also argues, like Arnstein, that power relations affect how public
participation is implemented.
●​ Public participation has seen a shift from a simple quantitative process to
inclusion of a qualitative aspect; it’s not just about how many people you reach
but how effective the views presented are in effecting outcomes.
●​ Nyabira argues that consumer theories in economics are all about what motivates
people to make consumption decisions; this application is universal and can be
applied in motivating people to participate.
●​ One of the theories presented in Modigliani’s life-cycle theory states that
‘individuals plan both their consumption and savings behaviour over the
long-term and intend to even out their consumption in the best possible manner
over their entire lifetimes’; what exactly does this mean? Individuals will tend to
make financial decisions with a long-term perspective aiming to maintain a stable
and consistent level of consumption in future rather than experiencing drastic
fluctuations.
●​ Applying this to public participation, the views are essentially driven with the aim
of making the future more stable and, therefore, the basis of motivating public
participation is how to secure the future.
●​ Some would say that public participation is about the means whereas deliberate
democracy is about the end goal.

Historical Approaches
●​ In the past, the government was extremely centralised and had regional and
ethnic exclusion tendencies; public participation sought to do away with the
centralised government.
●​ The argument is that we need a devolved government to better collect the views
of the citizens as county governments are closer and more well-acquainted with
the people who’re the source of the views.
●​ Public participation is key in attaining the goal of democratisation, which is an
important goal of transformative constitutionalism.
●​ Public participation is included repeatedly in the CoK 2010 which also provides
for representative as well as participatory democracy.
-​ Representative democracy is a form of democracy exercised through
elected representatives in the legislature.
-​ Participatory democracy is essentially public participation.
●​ Article 27(4) is linked to public participation as it provides the protected grounds
for discrimination.
-​ In Kenya, marginalised groups are, as defined in CoK 2010, groups that
are unable to fully participate in the integral social and economic life of
Kenya as a whole.
 -​ This form of discrimination was perpetrated by the central government
and led to the marginalised groups being excluded from debates of a social
and economic nature.
-​ Its creation ensured that everyone is involved in the integral social and
economic life of Kenya as a whole; this involvement can be interpreted as
public participation and consequently, Article 27(4) promotes public
participation.
●​ The CoK 2010 fails to provide for specific guidelines as to how public
participation is supposed to be conducted.

Salient Features of Public Participation

●​ Here, there arises the question of objective criteria v subjective criteria.
-​ Objective criteria entails criteria that’s concrete and written in statute;
things like ‘can it be put in the bill or amended into the constitution?’
-​ Subjective criteria are criteria that are left to the legislature or citizens to
decide; it’s not set in stone but rather left to their (Legislature or the
people) discretion
●​ Salient features can be categorised into the following:
I.​ Pre Public Participation
a)​Magnitude of Publicity
●​ Who exactly is a shareholder and have they participated?
●​ Look into the Makueni 6-tier system in regards to public
participation in making of county executive decisions.

b)​Forum
●​ Where exactly is the public participation taking place?
●​ It should be happening in a place that is accessible to the people
that it seeks to serve.

II.​ During Public Participation

a)​Time
●​ Some bills face the issue of being time sensitive.
●​ Two aspects come out here, namely:
-​ Adequate notice before the public participation takes place
-​ How long should public participation as this influences the
kind of feedback received

b)​Public Sensitisation
●​ This ideally has 2 aspects,namely:
 -​ Civic education; there’s a positive obligation on the
government and legislature to ensure that the public is not
only aware of the Bill but also the reasoning behind the Bill
-​ The fact that a Bill should ideally be accompanied by
auxiliary documents that then show legitimacy and help in
capacity-building for public participation in individuals

III.​ Post Public Participation

a)​Feedback
●​ Did the government put into consideration the views of the people?;
this is a concept of revisability.
●​ The government should seek to find out about the effectiveness of
the public participation in terms of conduction so that they can
improve.

b)​Reasonableness on Filtration and Selection of Public

Inputs
●​ The government needs to explain why ABC was selected and not
XYZ and this should be done in a transparent manner, indicating
how they filtered important and unimportant information as not
every decision of the public should influence the final decision.
●​ The culture of tokenism in public participation has distorted the
purpose of public participation in securing the future.

Conflicting Judgments
I.​ One-Off Process v Whole Process
●​ One-off process refers to a process where public participation is an
isolated event that takes place during a legislative process; it starts and
stops while the legislative process continues.
●​ Whole process refers to public participation as the driving force of the
legislative process; it’s not merely an event but a vital process without
which the legislative process would not continue.
●​ Nyabira looks at a number of judgements here, namely:
-​ Kenya Small Scale Farmers Forum & 6 Others v The Republic of
Kenya & 2 Others (hereinafter referred to as Small Scale Farmers
case)
-​ Nairobi Metropolitan PSV Union Limited & 25 Others v County of
Nairobi Government & 3 Others (hereinafter referred to as Nairobi
Metropolitan case)
 -​ Moses Munyendo & 908 Others v Attorney General & Another
(hereinafter referred to as the Moses Munyendo case)
-​ Law Society of Kenya v Attorney General (hereinafter referred to
as LSK case)
-​ Robert N. Gakuru & Others v Governor Kiambu County & 3 Others
(hereinafter referred to as Gakuru case)
-​ Doctors for Life International v Speaker of the National Assembly
and Others (hereinafter referred to as Doctors for Life case)
-​ The Institute of Social Accountability & Another v National
Assembly & 4 Others (hereinafter referred to as TISA case)
-​ Consumer Federation of Kenya (COFEK) v The Public Service
Commission and the Attorney General (hereinafter referred to as
CoFeK)
-​ Coalition for Reform and Democracy (CORD) & Another v
Republic of Kenya & Another (hereinafter referred to as CORD
case)
-​ Minister of Health & Another v New Clicks & 8 Others (hereinafter
referred to as New Clicks case)
-​ John Kinya Munyaka v County Government of Kiambu
(hereinafter referred to as Munyaka case)
●​ The Small Scale Farmers case is a case that was decided between the old
constitutional order (the repealed constitution) and the new constitutional
order (CoK 2010); here, discussions were at an advanced stage and public
participation had only happened once in the 5 years of the discussion.
●​ The court didn’t throw away the case but rather allowed the government to
continue its discussion on the condition that it would give the petitioners
full access to the information discussed; this approach fell short of
qualitative and quantitative consideration as the one discussion had no
effect on the final decision and the fact that the number of people, how
many representatives they had and the number of meetings that took place
weren’t taken into consideration.
●​ Essentially, the court viewed public participation as an event rather than
an ongoing process.
●​ The Nairobi Metropolitan case held that if public participation was to be
deemed to have taken place, the entire process of legislation needed to be
interrogated and the court advocated that public participation is a
whole-process event; this was also held in the Moses Munyendo case as
well as the LSK case.
●​ If public participation had not started in the beginning, the process is null
and void to the extent of the inconsistency; the process didn’t have public
participation from the beginning thus the Bill was null and void.
 ●​ In the Gakuru case, the court held that public participation is a one-off
event that needs to consider that public participation is attained both
quantitatively and qualitatively.
●​ There are a number of factors to consider when deciding which process of
public participation is better in the Kenyan context:
-​ Cost
-​ Time
-​ Constitutional history or rather the history of the lack of democracy

II.​ Coverage Consideration

●​ This entails looking at the extent of the geographical scope within the
relevant area as well as stakeholder consultation and the time period
allowed.
●​ In the Gakuru case, the court focused on stakeholder consultation and
said there was a need for there to be a special focus on reaching as many
people as possible by establishing as many fora as possible; argued that
representative democracy and participatory democracy should be mutually
supportive; deemed it important to consider power relation in the
population and put in place measures to ensure that the less powerful can
participate meaningfully; emphasised that public participation doesn’t end
at making the information available nor at empowering the citizenry and
taking care of the power differences but at the need to motivate the people
to participate.
●​ The court relied on the Doctors for Life case and resultantly created a
larger threshold for public participation and this is a good law.
●​ In the Munyendo case, the court was concerned with reasonable
opportunity and said that so long as reasonable opportunity is offered to
the members of the public and all interested parties know of the issues and
have adequate say, then public participation has occurred and
consequently, created a low bar for public participation thus opening up
the process for abuse by the government; relied on the Minister of Health
case that had a very restrictive approach to public participation.
●​ If any judge relies on the Minister of Health case or Munyendo case, this
gives one an insight as to what the judge thinks of public participation;
they have a narrow, restricted approach to public participation such that it
doesn’t have any real positive duty on the state.

III.​ People’s Views (Were They Put Into Consideration?)

●​ The Doctors for Life case spelt out 3 criteria to be put into consideration
with regards to public participation:
-​ Nature of legislation
 -​ Whether the legislation needs to occur urgently; also look at saving
of time and resources but this shouldn’t limit opportunity
-​ Rules adopted by Parliament on public participation
●​ In the Munyendo case, the court observed that the members of the public
and all interested parties should have an adequate say where ‘adequate
say’ means that people’s views ought to be considered, whether they be
substantial or not.
●​ In the TISA case, public participation was viewed not just as a matter of
form but one of substance as well, like the concepts of qualitative and
quantitative; public participation is not just about following the steps, it
also needs to have the meaning which can only be drawn from the views
that need to be considered as they have an impact on the final decision.
●​ Public participation must exist in structure (form) and have real influence
(substance); essentially what the TISA case is advocating for is that in the
consideration of views from the steps of public participation, only
substantial views should impact the final decision.

IV.​ Discretion
●​ The question arises regarding the determination of whether public
institutions and the legislature should have discretion with regards to
public participation.
●​ In the TISA case, the court advocated for a broad measure of discretion as
to how to achieve the objectives of public participation based on existing
circumstances.
●​ In the Gakuru case, the court allowed for discretion in regards to
determining how best to facilitate public participation, which should
ideally vary from place to place.

V.​ Direct v Indirect Participation

●​ The CoFeK and TISA cases held that public participation doesn’t mean
that there should be direct participation of the people but rather
recognition of their input.
●​ The Gakuru case held that the use of elected representatives and getting of
views from the people should be held on the same standard of
consideration.

VI.​ Qualitative & Quantitative

●​ The Small Scale Farmers case held that even though public participation
was done once and at the very end, that doesn’t invalidate the quality of
the public participation.
 ●​ In the Gakuru case, it was held that if quality is viewed in terms of number
of people reached as well as form of notice and the manner of
communicating was inaccessible to many people, the quality of public
participation is undermined.

VII.​ Application of Reasonableness Test

●​ The Munyendo and Gakuru cases held that what amounts to a reasonable
opportunity will be determined on a case-by-case basis.
●​ The CORD case, however, said that the urgency of the decision should not
be the sole determiner of what amounts to reasonable by applying the
3/3/3 rule (3 days for public participation, 3 days for submission of views
by the public and 3 days for public hearings).
●​ The Munyaka case said that reasonableness should be established in line
with the criteria spelt out in the Doctors for Life case.

Finance Bill @ The Supreme Court of the Republic of Kenya

●​ The Finance Bill had passed through 2 other courts, prior to getting to the apex
court, with the following outcomes:
-​ High Court- public participation was sufficient
-​ Court of Appeal- public participation was insufficient
-​ Supreme Court- public participation was sufficient
●​ The following 3 issues were under consideration at the Supreme Court:
-​ Were there substantive amendments made to the Bill?
-​ Was public participation needed after the substantive amendments?
-​ Being time-sensitive, should public participation be conducted afresh?
●​ The existence of the second issue answers the first issue.
●​ To the Supreme Court, a substantive amendment is one that changes the policy,
purpose and meaning of the provision whereas a technical amendment seeks to
rectify a mistake; they say that public participation need not be conducted after
substantive amendments have been made as this would be a circulous process as
the substantive amendments have been made as a result of the initial public
participation that took place; fault can be seen in this as the question arises of
where is the correlation between the views and the substantive amendments.
●​ Being time-sensitive, the Public Finance Management Act provides 61 days for
the amendment of the finance bill; the existence of regulatory legislation gives an
idea for the determination of whether public participation should be conducted
afresh.

Public Participation
●​ Does the public understand the motivation behind public participation?
●​ The aspect of public participation being taken advantage of
●​ Culture of tokenism in the country; there needs to be a change.