Public participation: Ogre that haunted Uhuru now hunts Ruto

Years ago, elders entrusted to give sound advice cautioned in Swahili that 'Ukiona cha mwenzako chanyolewa, chako tia maji' loosely translated to when you find your neighbour in trouble, learn from it.

Perhaps, the elders had in mind that some lessons are painful to learn on your own.

This is the story of an unlearnt lesson by President William Ruto from many cases that President Uhuru Kenyatta, his predecessor, lost for failing to conduct public participation.

As it seems, the court's fire and fury that made Uhuru's throne too hot to sit on has been ignited under Dr Ruto, his former deputy.

The Court has suspended Dr Ruto's maiden law, the Finance Act 2023, which would have allowed him to collect his projected Sh3.6 trillion from Kenyans.

It has also rendered the appointment of his close allies as Chief Administrative Secretaries (CASs) jobless, again, the central question being public participation. Public participation is provided for under Article 10 of the Constitution, 2010. It dictates that the government has to seek views from the public as part of good governance.

Lawyer Bob Mkangi, states that the drafters of the Constitution intended to have the public involved in policy making and implementations.

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In an interview with The Standard, the Constitution expert explains that although Kenyans have donated power to the State and its organs, public participation is a means of oversight of the actions of the State.

He asserts that authoritarianism has no place in the 2010 Constitution.

According to Mkangi, Kenyan system of governance is delegated thus every Kenyan has a right to participate in government - either directly or indirectly.

"Kenyans wanted to just buttress their sovereignty that they bequeathed themselves under Article one. In that delegated way, we say there will be democracy as they have delegated that power of the State and the organs of the State. The experience from the colonial times, they also needed that the delegated system of democracy with their own garnish it with their direct participation," says Mkangi

"It is a mixture of direct and indirect participation of the people. We have oversight and consultation through it. It is a check and balance mechanism, it is an oversight by the people on the State," adds Mkangi.

In 2017, Uhuru created a new position of CAS in every ministry. Uhuru's matrix had 80 to government officers following the appointments.

He based his decision on the advice of Public Service Commission (PSC) and Article (132) (4A) of the Constitution. The Article gives the president powers to create an office in the PSC.

These CAS positions were largely given to politicians who supported President Kenyatta's re-election bid but lost their seats.

However, it was not long before the now Busia Senator Okiya Omtatah challenged the appointments before Justice Anthony Mrima. Mr Omtatah accused the then Attorney General of failing in his duty of advising the government that creating the new posts would overburden the taxpayer. He also argued that the appointments were done without public participation.

Development agenda

The AG opposed the case arguing the court would be breaching the law on separation of powers by granting the activists' prayers. According to him, it was the discretion of the President to appoint persons who would drive his development agenda.

In the end, Justice Mrima in 2021 declared the positions to be unconstitutional for among other things, Uhuru's failure to conduct public participation.

The CASs however served on Court of Appeal's temporary orders. This was however not the end of the battle over the extra posts.

Leave Uhuru, come Dr Ruto. He too wanted to reward his allies who were left in the political cold with the same position. However, to shield the position, PSC did public participation for the initial 23 slots but Dr Ruto added 27 positions.

Again, Omtata was among those who challenged the appointments. Justices Kanyi Kimondo and Aleem Visram in a majority decision found that following Justice Mrima's verdict that the position was unconstitutional, the decision stood even for the new appointments.

At the same time, they found that the PSC did conduct public participation on the 27.

"The entire complement of 50 Chief Administrative Secretaries is unconstitutional," Justices Kimondo and Visram held. However, their colleague, Justice Hedwig Ong'udi found that the 23 were legally appointed but she agreed that the appointment of the extra 27 was unconstitutional.

Lawyer Charles Kanjama is of the view that Ruto might be slightly different from Uhuru. According to him, Ruto has tried to have public participation. However, how it is done, he says is the problem.

The lawyer has cited the current battle on Finance Act, 2023, stating that his headache is whether the voice of rejection to some of the clauses in the new law was factored in when Parliament considered the new law.

"The problem with the government is that they have tried to do public participation but they have failed on certain issues. Uhuru did not do participation but Ruto tried. On Finance Act, 2023, they ignored the memoranda against it," says Kanjama.

The CASs case was first major test for Ruto. The court handed him a red card. The case is now before the Court of Appeal. Meanwhile, the court has pressed pause on President Ruto's appointment of Shakahola massacre probe team appointment.

Lawyer Wangui Njoroge says the government cannot escape public participation, especially where taxpayers' money is involved. She states that courts have been clear on what the government and its devolved units should do.

"When you look at Article 10, the principles of governance, one of the participation of the people in Article 10 (2). Part of good governance is public participation. Times and again, courts have said that where government has administrative action, you have to participate in it. You need to look out for what the courts have said on public participation and Article 47," says Wangui.

In the meantime, in a successive streak, the court also suspended the implementation of the Finance Act.

Lawyer Dudley Ochiel says the essence of public participation in governance is to ensure that Kenyans get what they want from their leaders and not the opposite. According to him, the majority wins.

"It works in the assumptions that they can decide for themselves what they want and there should be a real opportunity to influence a decision. For example, if everyone says they do want Finance Act, 2023, that should count. It must have a real opportunity to influence government decisions," Dudley Ochiel.

Other laws and directives initiated by the Ruto-led government that have been challenged in court over public participation include the amendments to Water Regulations Act, 2021 and the lifting of the logging ban.

During the Jubilee Party administration's reign, Omtata had also challenged the Finance Act over the same issue. He also went for the Standard Gauge Railway (SGR), and the Building Bridges Initiative (BBI).

The Supreme Court disagreed with him on SGR. However, he, alongside other petitioners trounced the government on the drive to amend the Constitution.

At the same time, Huduma Namba, one of the Jubilee's major projects also attracted a case for alleged failure to engage the public.

Mkangi says the biggest headache for the government is that the principle is cross-cutting, hence cannot ignore it in law-making process.

"Public participation is one of the national values and principles of governance and it is Article 10 and why court find the offence they find that it is not properly utilised, they find fault in the actions," says Mkangi.

"The principles apply in all actions undertaken by the State and all Kenyans. The grounds are that it is a cross cutting principle that has to be applied whenever State has to do anything. Lawmaking policy formulation."