Public Participation in the Public Sphere of Kenya; Beyond the Veil

What is, and what is not public participation is a matter that has become much more relevant since the promulgation of the Constitution of Kenya, 2010.  More recently, the incident where the former Prime Minister of Kenya, Mr Raila Odinga, purportedly unearthed a scandal pertaining to the construction of the Northern Water Collector Tunnel exemplifies this.  The said Tunnel, whose cost wasestimated to be Ksh 6.8 billionis supposed to improve delivery of water to Nairobi City, Kiambu and Murang’a Counties.  According to Mr. Odinga, who indicated that his opinion was guided by technical and feasibility reports also available to the government, the environmental impact of the project is dire with the possibility of desertification of the regions of Murang’a, Garissa, Ukambani and Tana River Delta within five years of implementation.  While Mr. Odinga’s allegations raised temperatures among various sections of the public for different reasons, including the residents of Murang’a, one of the key issues that emerged was whether the residents of Murang’a had been consulted and their participation in the development of the project elicited.  The Governor of Murang’a, Mr. Mwangi Wa Iria, vociferously denied that there had been no public participation or that the public participation had at best been cosmetic.  He indicated that the matter had been discussed fully in the Murang’a County Assembly by the representatives of the various Wards, and the people of Murang’a adequately consulted.This article discusses the various dimensions involved in the idea of public participation and its implementation.

The idea of public participation is formally captured in the Constitution variously.  It is one of the values outlined by Article 10 that deals with National Values and Principles of governance that bind all state organs, state officers and public officers in the execution of their duties. Article 118(1)(b) states that,“Parliament shall …facilitate public participation and involvement in the legislative and other business of Parliament and itscommittees.”Article 174 provides for the objects of devolution of government which include the giving of power of self governance to the people to enhance the participation of the people in the exercise of the powers of the state, as well as when making any decisions that affect them.Article 184(1)(c) provides that, National legislation shall provide for the governance and management of urban areas and cities and shall, in particular…provide for participation by residents in the governance of urban areas and cities.”Article 196 provides that a county assembly shall facilitate public participation and involvement in the legislative and other business of the assembly and its committees.  Further, Article 201 outlines the principles that shall guide all aspects of public finance in Kenya, which includes public participation in financial matters.  Evidently, since the Constitution of Kenya, 2010 came into force, the implementation ofthe requirement for public participation both at the levels of the National and county governments has been untidy and lacking in structure.  Thus the several instances where the failure to achieve public participation has resulted in the concerted activism by civil society organisations against the Executive and the Legislature, with the consequent invalidation of a number of administrative processes and laws by the courts.

Part 8 of the County Governments Act, No.17 of 2012 contains quite elaborate provisions regarding citizen participation while Part 9 comprehensively expounds on issues of public communication and access to information.  Section 91 states, The county government shall facilitate the establishment of structures for citizenparticipation including—(a) information communication technology based platforms; (b) town hall meetings;(c) budget preparation and validation fora; (d) notice boards: announcing jobs, appointments, procurement, awards and other important announcements of public interest; (e) development project sites;…(g) establishment of citizen fora at county and decentralized units.”At the level of the Executive, The Ministry of Devolution and Planning & Council of Governors released guidelines to the counties in January 2016 titled, County Public Participation Guidelines. In the Preface to this Publication, the respective Minister, Honourable Mwangi Kiunjuri, stated,

The County Public Participation Guidelines is a timely and welcome resource which, if used well, will strengthen our democracy and governance, increase accountability, inclusivity, ownership and legitimize the various processes of implementing devolution… We expect the Guidelines to be used by all stakeholders including National and County Government Officers, civil society and all government institutions that are engaged in public service delivery.  They are not meant to replace existing county legislation on public participation, rather, they complement them where necessary.

Civil society organisations in Kenya have also played a significant part in highlighting the issues pertaining to public participation.  In particular, The Institute for Social Accountability (TISA) developed a handbook in April 2015 titled, ‘Public Participation Framework in the County Assembly’ which publication discusses the various key components of public participation. In addition, TISA developed a Draft County Public Participation Bill in 2014 that can be used as a prototype by the counties in the development of their own.  Transparency International Kenya Chapter also developed a Devolution Handbook in 2014 that covers the subject of public participation extensively.

In common parlance, participation connotes being a part of; the idea of one contributing or giving their input towards a process.  The idea of public participation at its most basic would therefore suggest a process where the input or contribution of citizens, who form the public in the state, is sought.  However, when interrogated further, there arise challenges as to what precisely constitutes the action of public participation.  Legislators would argue that in a representative democracy, the communications they issue whilst on the floor of Parliament ought to be deemed as communications from the constituencies they represent given that they are the legitimate representatives of their constituents, having been validly elected through a recognised electoral process.  Verification of whether in fact the legislators do seek the views and consensus of their constituents in arriving at the communications they issue is not usually a requirement.  Plausibly, the mere presence of the public in a meeting, even where no views are invited by the convenors whether from the entire public present, or from sections of that public, could be construed as participation.  This is as distinguished from the public or sections of the public not being invited to the meeting and therefore not being present at all.  At this level, one is reminded of Kenya’s colonial legislative history where the colonial legislature was initially populated by persons from the white race.  The Africans and Asians were clearly not participants.  Subsequently, Asians were allowed into the Legislative Council and Africans later on.  Notably, the ratio of representatives in the Legislative Council based on race saw the Europeans having the largest representation followed by Asians and then Africans.  The reality on the ground however was that Africans were the majority followed by Asians and then the Europeans. For as long the Africans and Asians were not in the Legislative Council, they could not have been deemed to have participated in the legislative affairs of the colony.

Further problems arise with the above model where participation is construed as the physical presence of the public or sections of the public in an engagement process.  Viewed from a gender perspective where women have long been silent participants in the governance and decision-making processes of the State, it is clear that the mere physical presence of one in a meeting without being afforded the opportunity to articulate one’s views cannot achieve the results expected.  Where the voice of women is required in a meeting in order to provide an alternative view or perspective that can only be innate to women, by virtue of their being biologically female, clearly, they must be given the opportunity to speak so that these perspectives are gained.  After the women, or any other relevant sections of the public,have been given the opportunity to articulate their views publicly, one may then examine the final decisions made in order to determine the actual value of their input.  In other words, was the communication of their views at most an exercise in ‘ticking boxes’ so that it can be reported that there was participation?

The case of Robert N. Gakuru & Others v Governor Kiambu County & 3 others [2014] eKLRis noteworthy for the attempt that was made by the Judges to decipher the components of public participation.  The case arose out of a dispute about whether the Kiambu County Government had met the threshold set by the Constitution for the participation of the public in the financial matters of the counties.  The Court invalidated the Kiambu County Finance Act for not having met the threshold of public participation and proceeded to lay down five parameters among others that must be fulfilled in order for public participation to be deemed to have taken place.  Firstly, with respect to the question of how much time should reasonably separate the invitation to the public for a hearing and the actual date of the hearing, the Court cited with approval the ruling in Glenister vs. President of the Republic of South Africa and Others (CCT 48/10) [2011] ZACC 6; 2011 (3) SA 347 (CC) ; 2011 (7) BCLR 651 (CC), where it was held that: “For the opportunity afforded to the public to participate in a legislative process to comply with section 118(1), the invitation must give those wishing to participate sufficient time to prepare. Members of the public cannot participate meaningfully if they are given inadequate time to study the Bill, consider their stance and formulate representations to be made.” From the latter, the Court distilled two principles as germane to public participation, namely, that there is need for interested parties to be afforded sufficient time to prepare for a hearing and also that the hearing must take place before the final decision is taken.  The Court took the view that adherence to the latter principles was necessary towards ensuring the achievement of meaningful participation which actually influences the decisions that are made.

Secondly, on the issue of the quality of public participation, the Court stated, “It is my view that it behoves the County Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively.  It is not just enough in my view to simply “tweet” messages as it were and leave it to those who care to scavenge for it.”Clearly, the expectation is that public participation ought to be real and not illusory and ought not to be treated as a mere formality for the fulfilment of Constitutional dictates.  Thirdly, as regards the mediums through which the public ought to be invited to public hearings, the Court stated that, it is the duty of the County Assembly in such circumstances to exhort its constituents to participate in the process of the enactment of such legislation by making use of as may fora as possible such as churches, mosques, temples, public barazas national and vernacular radio broadcasting stations and other avenues where the public are known to converge to disseminate information with respect to the intended action.” Fourthly, as to what constitutes the public, the Court stated that a few people huddling in a five-star hotel on a particular day cannot be termed as public participation with reference to the constitutional threshold applicable.

The fifth issue the Court addressed itself to was advertisement and stated, “Whereas the magnitude of the publicity required may depend from one action to another a one day newspaper ‘advertisement’ where a majority of the populace survive on less than a dollar per day and to whom newspapers are a luxury leave alone the level of illiteracy in some parts of this country may not suffice for the purposes of seeking public views and public participation.”  In addition, the Court took note that the text advertising the Kiambu County Government’s call for public hearings did not contain words that clearly demonstrated the Government’s commitment to providing the public with the opportunity to participate in the exercise of making the finance Bill.  More specifically, the Court stated, In support of their position that there was public participation, the Respondents have exhibited an advertisement in the Daily Nation of 17th August, 2013.  However, a careful perusal of the said advert reveals that apart from the mention of the Finance Bill in the title of the advert and the mention of the Bill in passing, there was not much mention of the said Bill.  In other words there was no attempt to exhort the public to participate in the process of the enactment of the Bill.  In my view there was no “facilitation”.

The interpretation of the Court in the case above and indeed in other cases, including that of Nairobi Metropolitan PSV Saccos Union Limited &25 others v County of Nairobi Government & 3 others [2013] eKLR (Petition 486 of 2013), have expounded the issue of public participation so as to provide a basis for the evaluation of standards of public participation by National and county governments.  Clearly, Kenyans are now the wiser with respect to understanding the components of public participation and it is evident that where undertaken, public participation ought to be meaningful from the start to end. Indeed the principles isolated by the Judges in the above case of Robert N. Gakuru & Others v Governor Kiambu County & 3 others do take cognisance of the unique nuances of Kenya’s society where among others gender inequality, illiteracy, poverty, etc.  feature to different extents.  Consider a situation where the National and county governments put out a clear advertisement in the terms advised by the ruling in the Kiambu County case calling the public to a hearing.  It is entirely possiblethat sections of the population may not be able to access the information because: if the advertisement is in the form of a poster, they may not residenear the site where the poster is placed; if the poster is in the daily newspapers, they may be unable to purchase the newspapers for lack of adequate funds, or unable to read the newspapers where purchased due to illiteracy.  Assuming that a reasonable section of the public has seen the advertisement which was put out in good time, clear language and with sufficient exhortation to the public to attend the hearings, it is possible that biased officials may not give sections of the public in the meeting venue an opportunity to speak and may in fact discriminate people based on sex, age, disability, ethnicity, etc.  Further, where all persons are afforded an opportunity to speak without bias, it is conceivable that this may be done merely to fulfil all the requirements pertaining to the mode that public participation ought to take, however, these views may be disregarded in the final decision because there exist no objective means through which this can be measured.

The mode of measurement of the extent to which public participation affects the final decision taken in any process of public engagement is clearly quite critical to the evaluation of the usefulness of such processes.  The question that arises in the above case of the Northern Water Collector Tunnel and many other such processes that have taken place in Kenya is the extent to which the final decisions taken are reflective of the views expressed in the preceding public engagement exercises.  To answer this question, one would need to examine the structure of the public engagement processes to identify the manner in which the public was invited to give their views i.e. whether written or oral.  Key elements to probe would include: Was the public given all the necessary and available information, both positive and negative, in order to promote greater understanding of the issues?  Was clarification provided by the officials during the course of the meeting in respect of any erroneous statements or views that were expressed?  In what manner was the information and views received from the public recorded, collated, and synthesised by the officials?  Finally, did the officials provide feedback to the public with respect to the decision arrived at and the rationale for the same?  A response to the latter questions would assist in the evaluation of the extent to which the final decision taken is reflective of the concerns raised in an exercise of public participation.  Evidently, a clearly structured and coherent system of recording, collating, and synthesizing information from the public, which is known in advance and explained to the public, would promote the transparency and accountability required in public participation processes that are a critical pillar of sound governance processes.