Public participation: Ogre that haunted Uhuru now hunts Ruto

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.

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.

Laws and directives initiated by the Ruto-led government have been challenged in court. [iStockphoto]

"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."