What The Constitution Says About Public Participation Amid Referenda Push
Currently there is no law to effect the constitutional provisions on public participation by public institutions other than a policy on the requirement developed by the Attorney General’s office in September 2018 for taxpayer-funded bodies to follow. (https://www.statelaw.go.ke/wp-content/uploads/2018/11/DOC-20181113-WA0023.doc)
The policy defines public participation as the process where citizens including individuals, groups or communities (stakeholders) get involved in the conduct of public affairs, interact with the state and other non-state actors to influence decisions, policies, programs and laws. Citizenry involvement also seeks to provide oversight in service delivery, development among other matters touching on their governance and public interest directly or through elected leaders.
It is when Senate is legislating a law to effect the constitutional provisions for the public to be involved fully in decision-making through the Public Participation Bill, 2018 set to undergo the final Third Reading stage. (http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2018/PublicParticipationBill_2018.pdf)
The proposed law provides a framework every public institution should follow for effective and coordinated public participation. Once enacted, every institution will be required to develop specific guidelines allowing the public to air their views in decisions affecting them.
Public Participation Process
“Public participation processes are different in all institutions and therefore the Bill recognizes these differences and designates responsible authorities for purposes of developing the specific guidelines and offering oversight for public participation,” reads part of the Bill, sponsored by Busia Senator Amos Wako.
Some of the provisions in the 2010 Constitution touching on public participation include Article 2 which allows sovereign power of citizens to be exercised at both national and county level, Article 69 (1) for the public to be involved in management, protection and conservation of the environment, and Article 118 for Parliament to facilitate public participation and involvement in law-making and other parliamentary activities including committee probes.
Article 174 (d) on principles of devolution recognizes the rights of communities to manage their own affairs in furthering their development while Article 184 (1c) demands a national legislation providing for participation by residents in the governance of urban areas and cities.
The County Governments Act, 2012, elaborates the principles of public participation and enjoins county governments under section 6 to ensure efficiency, effectiveness, inclusivity and participation of the people while exercising their powers and /or performing any of their functions. Article 196 (1) of the Constitution requires county assemblies to hold sittings and those of committees in public and facilitating residents’ involvement.
Others include Article 10 on national values and principles of good governance and Article 201 on Principles of Public Finance which advocates for openness through public participation.
So far 34 of 47 county governments have enacted laws allowing public participation after basing their engagement with residents on the 2016 County Public Participation Guidelines agreed upon between the Ministry of Devolution and Planning, and the Council of Governors. The Council of Governors chairman Wycliffe Oparanya during the June 2019 State of Devolution Address noted that public participation laws for remaining 13 counties were in various legislative stages.
Oparanya also pointed out that already 45 counties have functioning Public Participation offices. Seven out of 47 counties are yet to establish the County Budget Economic Forums allowing effective public engagement in preparing county budgeting and planning.
Although numerous public bodies have been embracing public participation, majority of citizens feel their views are either ignored or not taken seriously. For example, a 2017 Survey by Sauti za Wananchi, a lobby group advocating for good governance, revealed that nine out of 10 citizens do not think their opinions are considered in government decisions. The citizens, thus, feel largely disconnected from decisions and information at county level.
Oparanya confirmed that counties lack a structured framework on receiving feedback from the public while assuring that plans were underway to have the mechanism.
The council of governors has attributed failure to involve citizens fully to underfunding for counties carry out various public participation activities and lack of an existing law setting standards and coordination mechanism for public participation between the national and county governments. The CoG maintains that public participation should be done separately through collaboration as per the principle of separation of powers.
Punguza Mizigo Initiative
Currently, there are various attempts by the political class to have the Constitution amended through the referenda . The bids include the Punguza Mizigo initiative by Thirdway Alliance party which seems to have hit the snag following rejection by numerous county assemblies and the council of governors’ Ugatuzi (Devolution) Initiative. Another anticipated referendum is from the Building Bridges Initiative report to be handed to President Uhuru Kenyatta and Opposition leader Raila Odinga.
The Punguza Mizigo Initiative championed by party leader Ekuru Aukot was proposing reduction of National Assembly members from 416 to 147 to reprieve taxpayers the cost of representation and increase county budget to 35 percent from 15 percent. Other proposals were having a one-term president serving for seven years, empower Senate by making it the Upper House, and abolish nomination slots for senators and members of county assemblies.
Turkana and Uasin Gishu are the only County Assemblies that voted in support of Aukot’s Punguza Mizigo Bill out of the 47 county assemblies
However, were the public involved in the process and their views taken into account before the MCAs rejected or voted for the Bill?
The County Assemblies Forum secretary general Kipkurui Chepkwony in September this year directed all the 47 county assemblies to stop debate and voting on the Punguza Mizigo Bill until public participation is conducted to have views from citizens.
Some counties such as Kirinyaga opted to sabotaging of the Aukot’s initiative by suspending any deliberations on the time-bound Punguza Mizigo Bill for six months when its expiry period is over by three months. Other county assemblies such as Kisumu and Siaya never debated the Bill while in some the MCAs were bullied by their party leaders to reject it without debating or hearing views from the public, according to Aukot. s
The bruised Aukot has vowed to go back to the drawing board to kick-start a second constitutional amendment initiative from views he gathered from several county assemblies and the public.
Click here to understand the County budget making process
What journalists should do for good reporting
- Find out what the Constitution says about public participation in various Articles such as Article 10, Article 174 and Article 184.
- Find out what The County Government Act, 2012 Sections 6, 87 and 91 says about public participation.
- Inform the public whether some decisions have been subjected to public participation as per the Constitution or the process was hijacked by politicians and public officials.
- Tell the public the consequences of decision-making in governance without involving taxpayers such as legal action, protests, among others.
- Inform citizens the importance of public participation in decision-making and inquire if they were involved in certain decisions, project initiation or they were ignored.
By Samuel Kisika