Passing Public Participation Bill can help reduce public anger, protests in future

 Anti-government protestors brave tear gas along River Road, Nairobi, on July 2, 2024. [Jonah Onyango, Standard]

What we witnessed last week during the second reading of the controversial Finance Bill, 2024, will remain in our minds for a long time.

The countrywide protests resulted in multiple casualties and injuries, destruction of property, and even a breach of the parliamentary building by angry protestors who felt unheard by the government in the lawmaking process, case in point, the Finance Bill, 2024.

While addressing the nation after the bizarre incident, President William Ruto said, "To our young people of Kenya, I must thank you for helping our country organise our democratic discourse around issues. The conversation you have begun around pertinent issues in our nation will continue to inform policy and governance. This conversation will not be in vain...I will provide a framework for this conversation to be processed and its outcomes implemented."

I am happy that the President has seen the need for a proper framework for engaging the public in policy matters. This is amid the public's view that the recent public participation exercises have been mere formalities and have never taken into account the views of Kenyans.

While this may not be true for the Finance Bill 2024, it is true in many instances. We have seen many policy development initiatives, both at national and county government levels, where public participation was just a formality or what some call a costly 'cosmetic' exercise.

While presiding over a case involving the County Government of Kiambu on April 17, 2014, then High Court Judge George Odunga emphasised the importance of public participation in government decisions, specifically in the law-making process. He asserted that public participation is crucial in legislative and policy functions of the government and not just a 'cosmetic' exercise. His ruling saw the descent of the Finance Act 2013 of Kiambu County for being enacted without proper public participation.

This precedent-setting ruling paved the way for many petitioners challenging decisions by the national and county governments on the same grounds. More than 50 cases have been filed in the courts challenging the lack of public participation in appointments, legislation making, budgets, development projects, impeachments, etc. Despite major wins and losses in such cases, there has been no structured system for conducting public participation. The judgments have been informed largely by the provisions in the Constitution. 

Article 1 of the Constitution states that all sovereign power belongs to the people of Kenya, making public participation mandatory in the law-making process. Other provisions of the Constitution that support public participation include Articles 10(2), 35, 69(1)(d), 118, 174(c) and (d), 184(1)(c), 196, 201 (a) and 232(1)(d).

Before 2010, public participation was largely nominal and based on the government's goodwill. This changed with the Mwai Kibaki regime which began the journey to constitutional reforms. For the first time, we saw a descent in the supremacy of the Executive and Parliament to exalt the people's views in lawmaking.

The making of the 2010 constitution was in itself an emblem of reform in public participation. A constitutional commission was formed to collect the views of the citizens, which informed a series of consultations arriving at the Bomas Constitution Draft of 2004. This was followed by the much-sensationalised referendum where the 'Orange' side triumphed over the 'Banana' side.

The Kibaki regime set the country on a new path, which saw citizens' involvement in matters of governance. Unfortunately, 14 years later, we have yet to take the final step forward. In 2012, the Public Participation Policy, a framework for managing and coordinating public participation, was developed by a multi-government agency team. However, despite being tabled in the Senate and Parliament, the process is yet to be completed.

It is good that President Ruto was forced to listen to Kenyans' voices and withdraw the Finance Bill, 2024. However, to prevent the chaos we just witnessed, this is the time to accelerate the enactment of the Public Participation Bill 2023, into law. The Bill is still in Parliament after it was first published on September 1, 2023, and the first reading done on October 12, 2023. Before it is passed, however, it should be revised to include the Gen Z in policymaking in a manner that relates to them and the platforms they prefer.

A well-defined and outlined public participation framework is the panacea for the many petitions and protests involving lawmaking. The Public Participation Bill 2023, contains effective ways for public engagement in lawmaking, including a functional complaints and redress mechanism to address concerns via institutions like the Commission on Administrative Justice, Kenya National Commission on Human Rights Commission, Independent Police Oversight Authority, among others. Once enacted, the government must ensure that the law is effectively implemented both in letter and spirit in order to make public participation meaningful.