MOI UNIVERSITY

SCHOOL OF LAW

ANNEX TOWN CAMPUS

FLB 400: RESEARCH PAPER

A CRITICAL ANALYSIS OF THE PLACE OF PUBLIC PARTICIPATION AS A

CONSTITUTIONAL REQUIREMENT UNDER THE COUNTY GOVERNANACE IN

KENYA.

LLB/53/13

SADAM MAALIM HUSSEIN

SUPERVISOR:

MR. JOHN JOSEPH WAMWARA

 TABLE OF CONTENTS

CHAPTER ONE: PROPOSAL..................................................................................................2

1.0 INTRODUCTION............................................................................................................2

1.3 STATEMENT OF PROBLEM........................................................................................8

1.4 JUSTIFICATION OF THE STUDY................................................................................9

1.5 STATEMENT OF OBJECTIVES....................................................................................9

1.6 RESEARCH QUESTIONS..............................................................................................9

1.7 HYPOTHESIS................................................................................................................10

1.8 CONCEPTUAL FRAMEWORK...................................................................................10

1.9 RESEARCH METHODOLOGY...................................................................................10

1.10 LITERATURE REVIEW.............................................................................................10

1.11 CHAPTER BREAKDOWN.............................................................................................10

 CHAPTER ONE

1.0 INTRODUCTION

Generally, there has been great loss of clarity as to what entails devolution and/or federalism.

Further, it is also questionable at what instance does one of the aforementioned come into

existence?. Several countries of relevance in this division like United States of America,

France and United Kingdom have had a taste of these matters. However, authors and legal

scholars who have had their works major in devolution have defined this term in a manner

that shows no consistency, hence making it lose the expected grip.1

The central aim of this study is to assess the potential and ability of a devolved system of

government to inculcate participatory governance in Kenya. It therefore behooves the study

to create a degree of clarity on the concept of devolution. In this chapter therefore, the

concept of devolution is located as a form of decentralization and distinguished from other

forms of decentralisation.

OVERVIEW OF DECENTRALISATION

The central theme that characterizes scholarly definition of decentralization is that it entails

bringing decision making closer to the governed. It is regarded as a process through which

power, functions, responsibilities and resources are transferred from central to subnational

governments.2 It is conceived as mechanism for bringing government closer to the governed

by enhancing the capacity of the government to achieve local participation.3

According to Mawhood, decentralization ‘occurs when national government shares some of

its power with other groups, particularly those that are either geographically dispersed, or are

1
Ombo .D. Malumbe, “Crystallizing devolution in Kenya.” Available at
https://www.academia.edu/10329855/CRYSTALLIZING_DEVOLUTION_IN_KENYA accessed on
November 2015.
2
JM Kauzya ''Decentralization: Prospects for peace, democracy and development'' (2005) 23 available at
http://unpan1.un.org/intradoc/groups/public/documents/un/unpan021510.pdf , accessed on 12th November
2015.
3
V Azeem et al Financing decentralised government: How well does the DACF work (2003) 8
responsible for specific functions, or are given jurisdiction over specified physical

locations.’4The key elements to note in decentralization are power, authority and

responsibilities which are diffused intentionally to peripheral units from the centre to achieve

predetermined objectives. Litvack et al defines decentralization as ‘the assignment of fiscal,

political and administrative responsibilities to lower levels of government.’ 5 Fiscal, political

and administrative instruments are used to achieve the transfer of responsibility to other

levels of government. These instruments give rise to fiscal, political and administrative

decentralization.

Forms of decentralization

It is important to distinguish between different variants of decentralization given that each

form has its unique characteristics, policy implications and conditions for success. The

frameworks for decentralization comprise of a continuum – ranging from a centralized

framework to the federal system. Devolution is one form of decentralization framework that

lies within the continuum. It is important to check the contours of the different forms of

decentralization to avoid the oft folly of conflation.

1. Deconcentration

Deconcentration is the ‘assignment of authority to public servants based in lower spheres or

the field to make and implement executive decisions on behalf of the central government in

their localities.’6 It is a form of administrative decentralisation without devolution or a form

of local administration within centralization since the authority to make decisions or exercise

discretion remains within the centre.7 Functionally, the object of deconcentration is to

4
P Mawhood Local government in the third world: The experience of tropical Africa (1993) 4 available at
http://ywqujuwou.ru/qizihybu.pdf accessed on 12th November 2015.
5
Litvack J et al “Rethinking decentralization in developing countries” (1998) 4. Available at
http://www1.worldbank.org/publicsector/decentralization/Rethinking%20Decentralization.pdf accessed on 12th
November 2015.
6
R Crook & J Manor ''Democracy and decentralisation in South-East Asia and West Africa: Participation,
accountability and performance'' (1998) 18-20 http://www.cambridge.org/us/academic/subjects/politics-
international-relations/comparative-politics/democracy-and-decentralisation-south-asia-and-west-africa-
participation-accountability-and-performance. Accessed on December 2015
7
ibid
transplant the operations or workload of the central government to the periphery of the state

whilst ensuring that the central state retains overall control of discharge of the dispersed

functions.8

Manor views deconcentration as a form of decentralisation which ‘disperses agents of higher

levels of government into lower level arenas. The agents remain accountable only to persons

higher up in the system. The central government is not giving up any authority but simply

relocating its officers at different levels or points in the national territory.’ 9 In other words, it

is a power relationship within the same organization. 10He further states that in practice

deconcentration ‘tends to constitute centralization, since it enhances the leverage of those at

the apex of the system.’11 It guarantees central control and direct accountability to the centre.

Deconcentration is thus considered to be the weakest form of decentralization. This is

founded on the fact that it is merely a shift of responsibilities from central government

officials in the capital city to those working in regions, provinces or districts. It ensures that

the wishes and interests of the central government are not compromised. 12 Although it may

lead to greater access and more interface with central government services, it does not allow

any participation by the public in decision making.

2. Delegation

Delegation is the ‘transfer of selected public decision-making and administrative functions to

autonomous or semi-autonomous organizations as agents of the central

government.’13According to Rondinelli et al, delegation ‘transfers managerial responsibility

8
GS Cheema & DA Rondinelli (eds.) ''Decentralisation and development: Polity implementation in developing
countries'' (1983) 18-19.
9
J Manor The political economy of democratic decentralisation (1999) 5 available at http://www-
wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/1999/04/20/000094946_99033105561862/Rendered/
PDF/multi_page.pdf accessed on December 2015
10
G Hyden “No shortcuts to progress: African development management in perspective” (1983) 85
Deconcentration is regarded as the weakest form of decentralization. It is mostly prevalent in unitary states
where central government passes some of the responsibilities to the regions, provinces and districts.
11
Supra n 9.
12
C Opon “Towards an integrated decenntralisation policy in Kenya” (2007) 36.
13
Ibid 20-22
for specifically defined functions to organisations that are outside the regular bureaucratic

structure and that are only indirectly controlled by the central government.’ 14 The

organisations are ultimately accountable to the central government. 15Haque describes

delegation as ‘the transfer of functions to the local level but with the ultimate responsibility

lying with the central government.’16 In sum, delegation is when the central government

allocates some of its functions to the sub-national levels to carry out, but not to take full

responsibility for and without abrogating its own public accountability for those functions

and without prejudice to its right to retract the functions. 17 This usually happens through

executive fiat rather than a comprehensive legal framework. It is therefore susceptible to

abrupt policy shifts. Lastly, it does not adequately facilitate public participation at the

grassroots due to the fact that ultimate responsibility for decision making is retained by the

central government.

3. Devolution

Devolution is generally defined as ‘a process of transfer of political, administrative and fiscal

management powers between the central government and lower levels of government,

primarily operating at city and regional levels.’18 It is not just a linear process of power

transfer from national to sub-national level but also involves some degree of cooperation

between the different levels of government. According to Rondinelli et al it ‘is the creation or

strengthening financially or legally of sub-national units of government, the activities of

14
DA Rondinelli et al “Decentralization in developing countries: A review of recent experience” (1984) 15
available at http://onlinelibrary.wiley.com/doi/10.1111/j.1467-7660.1989.tb00340.x/abstract accessed on
December 2015.
15
MJ Balogun ‘The scope for popular participation in decentralization, community governance and
development’ in Regional Development Dialogue (2000) 21 available at
https://www.researchgate.net/publication/290086660_The_scope_for_popular_participation_in_decentralization
_community_governance_and_development_Towards_a_new_paradigm_of_centre-periphery_relations
accessed on December 2015.
16
MS Haque ‘Local governance in developing nations: Reexamining the question of accountability’ Regional
Development Dialogue (1997) 18 available at
https://www.researchgate.net/profile/Shamsul_Haque3/publication/237634450_EDITORIAL_INTRODUCTIO
N_LOCAL_GOVERNANCE_IN_DEVELOPING_NATIONS_REEXAMINING_THE_QUESTION_OF_ACC
OUNTABILITY/links/55e523b108aecb1a7ccb9607.pdf accessed on December 2015.
17
Supra n 8, 18-19.
18
Potter JG “Devolution and globalization: Implications for local decision-making” (2001) 46.
which are substantially outside the direct control of the central government.’ 19 This form of

decentralisation results in the permanent or semi-permanent placement of power to local units

usually through legislative and constitutional recognition. It is an ‘inter-organizational

transfer of power from the centre to institutions that are outside the general command

structure of the centre.’20 The recipients of such powers, usually sub-national governments,

exercise these powers with a significant degree of autonomy although the centre still

maintains supervisory powers. The sub national units are accountable to their constituencies

instead of the central government as is the case with deconcentration and delegation.

In this regard, devolution is broader than deconcentration as it encompasses more than just

the transfer of administrative powers. In addition, the authority to make policy decisions in

the political, administrative and fiscal spheres is conferred on the sub-national entities by

law.21Thus, while de-concentration manifests low autonomy and central accountability,

devolution on the other hand is characterized by high autonomy and downward

accountability.22This implies that in devolution, the sub national entities are not directly

accountable to central government although they have to work within the Constitution and

rules set by it.23 It must be noted that in contrast to federations, devolved levels of

government do share in sovereignty. The powers and responsibilities of the devolved levels

of government are derived from and conferred by the constitution 24. The constitution affirms

that sovereignty lies with the people and that sovereign power under this Constitution is

delegated to the State organs; Parliament and the legislative assemblies in the county

19
Supra n 14.
20
Supra n 10.
21
A Omollo “Devolution in Kenya: A critical review of past and present frameworks” in Mwenda AK (ed.)
Devolution in Kenya: prospects, challenges and the future (2010) 14-35, 17.
22
A Oloo “Devolution and democratic governance: Options for Kenya” (2006) 5 available at
http://www.worldcat.org/title/devolution-and-democratic-governance-options-for-kenya/oclc/70107283
accessed on December 2015.
23
DM Muia Devolution of governance to districts in Kenya: A case study; In Kibua TN & Mwabu G (eds.)
“Decentralization and devolution in Kenya: New approaches'' (2008) 77-133.
24
Article 1 (2) (3)of the 2010 Kenyan Constitution.
governments; the national executive and the executive structures in the county governments;

and the Judiciary and independent tribunals.

Professor Charles Hauss does define devolution as “The transfer of power from a central

government to sub national (e.g. state, regional, or local) authorities. Devolution usually

occurs through conventional statutes rather than through a change in a country’s

constitution.”25However this doesn't necessarily apply in Kenya since devolution remains a

creature of Kenya's constitution. Article 1 of the Kenya's constitution shares out sovereignty

which shall be exercised in accordance with this constitution at both levels of government. It

is on the same basis that the constitution of Kenya 2010 Chapter 11 establishes the institution

of devolved governance in Kenya.

However Ombo Malumbe in his article “Crystallizing devolution in Kenya” critics Professor

Hauss by stating the phraseology utilized by one Prof. Charles Hauss need no further

explanation and that it will be noted that some imperative elements were precluded by

utilizing the terms “[d]evolution usually occurs through conventional statutes rather than

through a change in a country’s constitution.” If the Kenyan situation is invited herein, it will

totally erode Prof. Charles Hauss argument and/or definition of Devolution. Nevertheless, as

much as one could presume he meant “local Governments and/or municipalities”, the same is

not true as his paper portrays County Governments as those in Kenya. In Kenya however the

people must have a say in the constitutional amendment or constitutional making process as

was held in the case26 where the High court was to the effect that the sovereign right to

replace the Constitution vests collectively in the people of Kenya and shall be exercisable by

the people through a referendum or a constituent assembly. The High Court therefore made a

25
Charles H. "Devolution: Government and Politics". Encyclopaedia Britannica, Available at,
http://www.britannica.com/EBchecked/topic/155042/devolution (Accessed on the 18th Day of November, 2015)
26
Njoya and Others v Attorney-General and Others (2004) AHRLR 157 (KeHC 2004)
referendum a prerequisite for the replacement of the Constitution with a new Constitution as

opposed to the optional referendum provided for by section 27 of the Act.27

The Black’s Law Dictionary on the other hand defines devolution as the act or an instance of

transferring one’s rights, duties or powers to another.28 It is the practice in which the authority

to make decisions in some sphere of public policy is delegated by law to sub-national

territorial assemblies (e.g., a local authority) and entails transferring governmental or political

authority. It is a political device for involving lower-level units of government in policy

decision-making on matters that affect those levels.29Devolution is premised on the rationale

that institutions closest to the citizens are the most likely to meet and properly articulate

needs of the citizen. 30 It is estimated that 40% of the world’s population lives under some

form of devolution visible across the Commonwealth31 and Africa.32 The concept of

devolution has also been constitutionalised in the world’s oldest Constitutions. 33 The concept

of devolution takes the form of confederal systems which permit independent political units

to come together for strictly limited purposes, federal system which has government like units

exercising powers delegated to it by the people and decentralized systems which are issue

based.34 These systems provide for a distinct structure with responsibilities, functions, inter-

relations, financial and resource control and system of representation. In Kenya, this concept

is not nascent being a constitutionally devolved State at independence. Constitutional power

was transferred to the respective regions which enjoyed tax concession and financial powers.

This system of devolution was popularly dubbed “Majimbo” a constitutional term for a

27
Section 27, The Constitution of Kenya Review Act 2004, Cap 3A
28
Bryan A. Garner, Black’s Law Dictionary 9th Edition 518.
29
The Constitution of Kenya Review Commission (CKRC) Main Report (2005) 223-242.
30
Katalin T, “The Impact of Decentralisation on Social Policy”, LGPA/OSI, Budapest, 2003. The author argues
verbatim that, ‘decentralization which provides that power over the production and delivery of goods and
services should be handled over to the lowest unit capable of dealing with associated costs and benefits.
31
Canada, India, Malaysia, Australia, South Africa, Nigeria, Pakistan and Britain.
32
Nigerian and Ethiopian federations
33
United States of America, Switzerland and Canada whose Constitutions are federal
34
supra n.6 at 234
federalist system.35 It was however abolished de jure through a National Assembly decision

and has faced criticism on its practicability on the ground that it resulted to divisions of the

country into autonomous ethnic homelands.36 Infact the former Attorney General Charles
37
Njonjo in his article in the Star Newspaper explains that the country faced alot of

challenges ranging from the a secessionist war against Somalia to the Shifta war where the

war was being sponsored by Somalia state – the same Somalia which sponsored the Somalis

in the Ogaden to create a greater Somalia in Ethiopia. The former Attorney General states

“This is the situation Mzee Jomo Kenyatta had to deal with. And we needed to find a

way of unifying the country. Majimbo definitely was not the means of attaining that unity.

You didn’t want regional leaders whose only interest was their region. You needed a central

government which was strong enough to have its effects felt in every corner of the country.

And, as it happened, financially also, that was the only viable option. There was simply no

way that all the structures which had to be created to effectively govern all these

different jimbos, could be funded at that time.”

In the report by Nguzo Za Haki38Doctor Mutakha explains approaches to the organization of

governance and management of state power. Generally two approaches are employed that is:

1. The single dimensional approach creates one level of government and systems to check the

separation of powers between the horizontal organs of government. This approach is most

likely to result into a centralized government;

35
SID Constitution Working Papers No. 4, ‘Devolution in Kenya’s new Constitution’ 26. Available at
http://www.sidint.net/sites/www.sidint.net/files/docs/WP4.pdf accessed on December 2015 accessed on March
2016.
36
Supra note 6 at 229.
37
Charles Njonjo, “Why Devolution Failed In '60s And May Fail Again” The Star Newspaper Sep. 19, 2015,
available at http://www.the-star.co.ke/news/2015/09/19/why-devolution-failed-in-60s-and-may-fail-
again_c1206202 accessed on March 2016.
38
Nguzo Za Haki report: ''Demystifying Devolution; an interview with Dr. Mutakha Kangu'', available at
http://www.knchr.org/Portals/0/Magazines/Nguzo%20za%20Haki-Devolution.pdf accessed on March 2016.
2. The multiple dimensional approach creates two or more levels of government as well as

systems to check power vertically between the various levels, and horizontally between the

various organs at all levels. It is this latter approach that leads to devolution with two or more

levels of coordinate governments. It combines self-governance at the local level and shared

government at the national level. The Constitution of Kenya 2010 applies a multi-

dimensional approach whereas the repealed Constitution was based on a single dimension

approach.

1.1 Background

Brief Theoretical understanding of meaningful public participation.

The Kenyan Constitution is explicit in its requirements for a participatory process in

governance. Indeed, one of the main objectives of the devolved system of government is to

“enhance the participation of the people in the exercise of the powers of the state and in

making decisions affecting them”.39Even more specifically, one of the roles that have been

allocated to county governments is “ensuring and coordinating the participation of

communities and locations in governance at the local level”. 40 The Kenyan courts are

increasingly interrogating public participation requirements and providing direction regarding

how participation should be implemented. Several pieces of legislation and guidelines have

also addressed the issue of public participation, all of which explain the constitutional

provisions further and can be relied upon by the courts. Courts can also draw from the

international law and other jurisdictions which have provisions relating to public participation

and that have also been a subject of judicial interpretation. In all of this, the theoretical and

conceptual basis for public participation is essential in the judicial interpretation of the

normative framework.

39
Constitution of Kenya 2010, Article 174
40
Ibid, Schedule Four
In the last five years of constitutional implementation and three and half years of the

existence of a devolved system of government, the Kenyan courts have made several rulings

relating to public participation based on the existing normative framework. The decisions

have looked at several issues including the definition of public participation, the extent to

which the constitution of Kenya 2010 requires public participation, entities required to ensure

public participation, the manner and what constitutes public participation. The general trend

is that the courts have in most cases dismissed cases claiming lack of public participation on

various grounds. The courts have also, largely, relied on the South African courts’

interpretation of public participation. The main themes emerging from the courts’

interpretation of public participation include the approaches to determine meaningful public

participation, challenges in measuring, and conflicting interpretations.

1.3 Statement of problem

The promulgation of the 2010 Constitution inaugurated a new era of devolved system in

Kenya. The constitution in its preamble state that ''We the people of Kenya proud of our

ethnic, cultural and religious diversity, and determined to live in peace and unity as one

indivisible sovereign nation and who recognise the aspirations of all Kenyans for a

government based on the essential values of human rights, equality, freedom, democracy,

social justice and the rule of law.'' 41 This signifies that the people of Kenya have through the

new dispensation moved from the central system where power and resource was controlled

by the centre to a more robust, robust inclusive and people centered system of governance.

Devolution is nevertheless one of the national values and principles of governance in Kenya

which shall bind on all State organs, State officers, public officers and all persons and the

constitution in particular states equity, inclusiveness, equality, good governance, transparency

41
Preamble of the 2010 Kenyan Constitution
and accountability as one of such values on which governance should be based at all levels of

government.42

The devolved governance structure has been entrenched with the aim of promoting

democratic and accountable exercise of power. The constitution of Kenya 2010 sets out in

Article 174 and 175 the objects and principles of devolved government which includes

amongst others the powers of self-governance to the people and enhances the participation of

the people in the exercise of the powers of the State and in making decisions affecting them.

However, devolution as a national value which should be based on participatory governance

is not justiciable in as much as it binds both levels of governments. It is therefore imperative

to have a clear legal framework for participatory governance under the county governance

structure. There is need for clear guideline on what entails public participation, the threshold

for participatory governance and how the same can be enforced at county level. There is also

need to interrogate context specific features of Kenya’s legal and institutional landscape that

threaten the design and implementation of participatory governance initiatives. It is lack of

clear guideline on participatory governance at county level which has led to rejection of

Kiambu County's Finance Bill for want of the same. The court was faced with difficulties

when answering the question of what entails participatory governance and its threshold43.

1.4 Justification of the study

The study of this particular area of devolved governance is justified on the grounds that in as

much most will argue devolution being the most positive gift of the new order, it is now close

to five years since we promulgated the new dispensation and there is need to evaluate the

concept of participatory governance in Kenya and strides that we have made in this area. The

Article 10(1), 10(2) of the 2010 Kenyan Constitution

42

43
Robert Gakuru & Others v Governor Kiambu County & 3 Others (2014) eKLR. Available at
http://kenyalaw.org/caselaw/cases/view/97000/ Accessed on December 2015.
research will examine closely the legal framework in place to enhance public participation as

a tool of governance at county level.

1.5 Statement of objectives

The objectives of this research are to:

1. Examine the Legal framework in place for participatory governance in Kenya under

the county governance.

2. To examine how courts have approached this issue of participatory governance under

the county governance structure in Kenya.

3. To critically analysis how other countries with similar system of county governance

have approached and implemented the issue of participatory governance at county

levels.

1.6 Research questions

This study aims at answering the following questions;

1. Does the 2010 constitution envision a different mode of public participation at county

level and if it does, what is the place of public participation in this new mode?

2. How has Kenya's judicial system approached the issue of participatory governance

under the county governance system and whether such approach is adequate?

3. How have other jurisdictions with similar devolved structure as Kenya approached

and implemented the question of participatory governance at county level.?

1.7 Hypothesis

The research paper avers that:

1. That the current legislative framework in place for participatory governance at county

level is not clear enough and that there is need to have a framework that clearly sets

out the standard for participatory governance.

 2. That a more clearer legislative approach for public participation at county level will

go a long way to reducing court cases based on participatory governance, the ripple

effect being enhanced service delivery at county level.

1.8 Conceptual framework

The main jurisprudential approach to this study is legal positivism. This study also assumes a

modern and critical theoretical approach in the form of post-liberalism as the methodological

base for seeking answers to the above research questions.

1.9 Research methodology

This research is heavily reliant on secondary data. This data is gathered from constitution,

statutes, commission reports, journals, books, articles, case law, international instruments,

and internet sources. From the data received, then a legal and critical analysis of each is made

so as to reach a conclusion that is both practical and ideal.

1.10 Literature review

Although the constitution was adopted nearly six year ago which stipulated a comprehensive

framework for devolved governance in Kenya, there have been a number of literatures on a

numbers of issues that have not been clear and which have served as a centre for

controversial debates in the country . This research paper will take these available works into

consideration even as it tries to bring an ideally different approach to the whole debate of

devolution.

Walter Khobe in his article 44 states that unlike many classical liberal constitutions, the

primary concern of Kenya’s constitution is not to restrain state power, but to facilitate

fundamental change in unjust political, economic and social relations in Kenya. The

Walter Khobe“Chief Justice Mutunga and social justice as the grundnorm for Kenya’s constitutional order”
44

The Platform, 2015. Available at https://www.google.com/search?q=the+platform&ie=utf-8&oe=utf-

8#q=Walter+Khobe%E2%80%9CChief+Justice+Mutunga+and+social+justice+as+the+grundnorm+for+Kenya
%E2%80%99s+constitutional+order%E2%80%9D%2F+The+Platform%2C+2015 accessed on December 2015.
commitment to equity, equality and sharing of resources in the preamble must inform both

the interpretation and implementation of the constitution. Despite the fact that the constitution

seeks to fundamentally alter the basic fabrics of the lives of Kenyans and to transform the

political, economic and social dimensions of Kenyan society the author seeks to majorly

focus on social justice as proclaimed in the constitution and my research despite borrowing

from the same will seek to fill the gap of devolution and it is place in the transformative

constitution.

Decentralisation of government has been the subject of scholarly critique as an alternative to

governance deficiencies of centralised government. Decentralisation has been studied

regarding its claim in improving effectiveness of poverty reduction strategies, delivery of

basic services and in relation to self-determination and minority rights.

In this regard, Leonard has focused on the claim that decentralised participatory democracy is

a human right as it encapsulates the right to self-determination. 45 She points out that

decentralisation can enable the realisation of human rights albeit with the caveat that this does

not follow automatically. However, she fails to address the issue of the interface between

decentralisation and democratisation. Ahikire interrogates the place of decentralisation in

public sector reform.46 She focuses on the decentralised system of government as

conceptualised and practised in Uganda. Her study explores the place of decentralisation in

furthering the implementation of human rights. She argues that ‘the policy was designed to

devolve powers and responsibilities for administration, planning and finance to the local

levels where people can also participate indecision making of their respective areas.’ 47 She

45
J Leonard ‘Decentralization and local governance enhancement: A human rights checklist’ (2003) UNDP
available at http://www.undp.org/governance/docs/DLGUD accessed on March 2016.
46
J Ahikire “Decentralisation in Uganda today: In the context of human rights”(2002) International Council on
Human Rights Policy available at http://www.ichrp.org accessed 20 April 2016.
47
Ibid
therefore fails to address the context specific issues that arise with respect to Kenya since her

study focuses exclusively on Uganda.

Ghai and Cottrell48 make general observations on the principles of self government and local

responsibility as embodied in the Kenyan constitution. They note that the objectives of

devolution are in fact elaborations of the national values and principles. They further point

out that the essential purpose of devolution is to spread the power of the state throughout the

country and reduce the centralisation of authority which has been blamed for bad governance

in Kenya. Apart from a cursory remark that self-governance will only be meaningful if there

are political or semi-administrative units below the county government, the authors have not

delved into a critique as to the adequacy of the structures and mechanism for public

participation.

Warner et al have focused on the role and preparedness of local authorities to take up service

delivery as envisaged in the constitution. 49 They have not discussed the devolved government

structure and its implication for public participation in governance. Nyanjom50looks at the

administrative consequences of Kenya’s shift to a devolved system of government. He

examines the administrative and development imperatives of devolving power. On his part,

Kirira51 examines the fiscal consequences of Kenya’s adoption of a devolved system of

government. He examines the revenue and expenditure concerns consequent to the shift in

system of government. Nyanjom and Kirira therefore fail to interrogate public participation

within the county governments.

48
YP Ghai & JG Cottrell ''Kenya’s constitution: An instrument for change'' (2011) available at
https://searchworks.stanford.edu/view/9750659 accessed on 20th March 2016.
49
M Warner et al ''Kenya’s urban development in the 21st century: The call for innovative initiatives from local
authorities' (2011) Available at
http://dspace.africaportal.org/jspui/bitstream/123456789/34892/1/KenyaUrbanDevelopment%20(1).pdf?1
accessed on March 2016.
50
O Nyanjom ‘Devolution in Kenya’s new constitution’ (2011) Society for International Development,
Constitution Working Paper No. 4.
51
N Kirira ‘Public finance under Kenya’s new constitution’ (2011) Society for International Development,
Constitution Working Paper No. 5 available at http://www.fahamu.org/sites/default/files/Public%20Finance
%20working%20paper.pdf accessed on March 2016.
The literature reviewed either examines or take stock of the process and outcomes of

devolution within countries where this system of government has been adopted. Although

there have been studies of devolution in relation to governance and the role it can play in

democratic reform, little effort has been made to examine devolution with regard to its claim

of delivering participatory governance. In fact, regarding Kenya, there is no literature that has

sought to examine whether the structure of the devolved government in Kenya adequately

guarantees participatory governance.

1.11 Chapter breakdown

This paper shall entail a total of five chapters.

Chapter one, which is the introductory chapter, provides a context to the study, and sets the

background, problem statement, the objectives, research questions, hypotheses, justification,

methodology, and the structure of the study.

Chapter two dissects the concept of public participation, the legal framework in place and

whether it’s adequate for the implementation of participatory governance.

Chapter three will seek to examine how Kenyan courts have approached the question of

public participation.

Chapter four dissect how other jurisdictions with similar system of governance have dealt

with the concept of public participation at county level.

Chapter five will make some recommendation with regards to the need to have a more clearer

approach that not only has the concept of devolution as a core principal but also as a national

value and principal, it will avert public participation as core principal of governance and

make some conclusion of the research topic.

 CHAPTER TWO

LEGAL FRAMEWORK FOR PUBLIC PARTICIPATION IN KENYA

2.0 Introduction

The Kenyan Constitution is explicit in its requirements for a participatory process in

governance. Indeed, one of the main objectives of the devolved system of government is to

“enhance the participation of the people in the exercise of the powers of the state and in

making decisions affecting them”.52 Even more specifically, one of the roles that have been

allocated to county governments is “ensuring and coordinating the participation of

communities and locations in governance at the local level”. 53 The Kenyan courts are

increasingly interrogating public participation requirements and providing direction regarding

how participation should be implemented. Several pieces of legislation and guidelines have

also addressed the issue of public participation, all of which explain the constitutional

provisions further and can be relied upon by the courts. Courts can also draw from the

international law and other jurisdictions which have provisions relating to public participation

and that have also been a subject of judicial interpretation. The courts have also, largely,

relied on the South African courts’ interpretation of public participation. The main themes

emerging from the courts’ interpretation of public participation include the approaches to

determine meaningful public participation, challenges in measuring, and conflicting

interpretations.

This chapter discusses the theoretical, historical and normative basis for public participation.

The Concept of Meaningful Public Participation: Brief Theoretical Understanding

52
Constitution of Kenya 2010, Article 174.
53
Ibid, Schedule Four.
Public participation in public affairs has gained prominence in the recent days in many

countries of the world. The concept, however, is yet to achieve a single universal meaning

although the need for participation to be ‘meaningful’ is widely appreciated. In this regard,

several theoretical approaches have emerged. Arnstein, for example, defines public

participation as, “the redistribution of power that enables the ‘have-not’ citizens, presently

excluded from the political and economic processes, to be deliberately included in the

future”. She further argues that “unless citizens have a genuine opportunity to affect

outcomes, participation is mainly concerned with ‘therapy’ and ‘manipulation’ of

participants”.54 Arnstein, therefore, is concerned with the redistribution of power (degree of

control) as a means of ensuring that meaningful public participation takes place.

Ghai too agrees with Arnstein’s view with regard to the need to focus on the ability to affect

outcomes. He says that, “the heart of participation is the ability to have an impact on the

outcome”55 Waterhouse, argues that in order to understand the concept of ‘meaningful

participation’, it is important to understand theories of deliberative democracy and how they

marry with the representative democratic systems.56 She also argues that public participation

is a political process and can thus only be understood through the appreciation of “social and

political power and how they affect processes and the potential for public influence.” 57

Waterhouse, like Arnstein, further argues that power relations affect how participation is

implemented, the rules of engagement, who speaks and whose opinions matter, all of which

have a significant impact on the outcome; and that based on this understanding, participation

theories are shifting “towards developing theories of citizen participation that address the

54
SR Arnstein, ''A ladder of citizen participation'' AIP Journal July 1969 p 216 available at http://lithgow-
schmidt.dk/sherry-arnstein/ladder-of-citizen-participation.html accessed on 11th April 2016
55
Y P Ghai, ''Public participation and devolution; Understanding devolution'' (2015) p 66 available at
http://allafrica.com/stories/201306170597.html accessed on May 2016.
56
S J Waterhouse ''People’s Parliament? An assessment of public participation in South Africa’s legislatures''
University of the Western Cape (2014) 24 available at https://open.uct.ac.za/handle/11427/15198 accessed on
May 2016.
57
Ibid.
transformation of power relations and the empowerment of people who participate.” 58

Mander agrees with this argument. He argues that empowerment which involves building

‘power within’ ‘to build social movements, participate in governance and take action to hold

the state to account’ is crucial to public participation.

The theoretical development above reflects a shift in the understanding of public participation

approaches from simply quantitative which is about reaching as many people as possible to

include the qualitative which is about effectiveness. The measure of meaningful public

participation therefore, should be based on how widely participation takes place but also how

the power relations have been managed for the participation to be effective; and possibly the

management of cultural change in favour of a more consultative one. This approach holds

that power manifestations have links with social exclusion and inequality which have

eventual negative effect on public participation.

Historical Development of Public Participation in Kenya and Devolved Governance

The devolved system of governance is one of the greatest innovations of the Constitution of

Kenya, 2010. The main aim of its introduction was to dismantle the centralized system of

government that had regional and ethnic exclusion tendencies causing wide socio-economic

disparities. As early as 1997, the political opposition in Kenya together with the church and

civil society secured government support for a people’s lead constitution review process. This

was achieved through the enactment of the Constitution of Kenya Review Commission Act of

1997, Cap 3A of the Laws of Kenya, after long negotiations. 59 The Act states one of the

objects and purpose of constitutional review as; ‘Promoting the peoples’ participation in the

governance of the country through democratic, free and fair elections and the devolution and
58
S Hickey and G Mohan ''Relocating participation within a radical politics of development and Change''
(2005) 36(2) p 8 available at http://oro.open.ac.uk/4103/1/Hickey_and_Mohan_revised_70704.pdf at 19th April
2016.
59
Constitution of Kenya Review Act, 1997 http://www.constitutionnet.org/files/KEL97-005.pdf at 20th May
2016.
exercise of power’ and ‘Ensuring the full participation of people in the management of public

affairs’.60

Some sections of the Act were however challenged in court on the grounds that they did not

require participation of the people in adopting the new constitution.61 The court ruled in

favour of the petitioners, paving way for the 2005 constitutional referendum. In the case, the

court relied on B O Nwabweze’s definition of ‘constituent power of the people’. He defined

sovereignty as having three elements namely: ‘the power to constitute a frame of government,

the power to choose those to run the government, and the powers involved in governing. He

added that “It is by means of the first, the constituent power, that the last are conferred”. 62

Consequently, the subsequent Act, rightly, stipulated that the new constitution should, among

other reforms, provide for devolution; and exercise of power; and the participation of the

people.

''AND WHEREAS for the last two decades, the people of Kenya have yearned for a

new Constitution which: promotes the people’s participation in the governance of the

country through democratic, free and fair elections and the devolution and exercise of power

and further ensures the full participation of the people in the management of public

affairs.''63

60
Supra n. 58 sec 3(d).
61
Njoya and others v Attorney-General and Others (2004) AHRLR 157 (KeHC 2004) available at
http://www.constitutionnet.org/files/misc_civ_appl_82_of_04.pdf accessed on May 2016.
62
B O Nwabwezi, “Presidentialism in Commonwealth Africa” L Hurst and Company (1974) 392 available at
https://www.amazon.com/Presidentialism-Commonwealth-Africa-BNwabueze/dp/0903983168?
ie=UTF8&*Version*=1&*entries*=0 accessed on May 2016.
63
Constitution of Kenya Review Act of 2008
http://katibaculturalrihgts.files.wordpress.com/2016/04/constitution_of_kenya_review_act_2009.pdf at 15th
May 2016.
THE NORMATIVE FRAMEWORK ON PUBLIC PARTICIPATION

Public Participation under the Constitution of Kenya 2010

The Constitution of Kenya 2010 provides the main framework for public participation in

Kenya providing for both representative as well as participatory democracy. Article 1 states:

all sovereign power belongs to the people of Kenya and shall be exercised only in accordance

with this constitution. The people may exercise their sovereign power either directly or

through their democratically elected representatives.64 Article 10 further recognises

participation of the people as a national value which; bind all state organs, state officers,

public officers and all persons whenever any of them applies or interprets this constitution,

enacts, applies or interprets any law; or makes or implements public policy decisions.65

Public participation is an assigned function of the county governments which are charged

with; Ensuring and coordinating the participation of communities and locations in

governance at the local level and assisting communities and locations to develop the

administrative capacity for the effective exercise of the functions and powers and

participation in governance at the local level. 66 Indeed, elsewhere, the Constitution defines

‘marginalised community’, as those, among other reasons, that have been ‘unable to fully

participate in the integrated social and economic life of Kenya as a whole’. 67 The

Constitution, therefore, attributes the existing social injustices in Kenya on the exclusion of

some people from the Kenyan political social and economic life, which it seeks to correct

through devolution.68 Based on the constitutional definition of a ‘marginalized group’, which

is about being disadvantaged by discrimination on Article 27 grounds, and having seen the

link between public participation and social justice, it can be argued that one criteria for
64
Constitution of Kenya 2010 Article 1 and 2
65
Supra n.54.
66
The Constitution of Kenya 2010, Fourth Schedule
67
The Constitution of Kenya 2010, Article 260.
68
Constitution of Kenya 2010 Article 174(g).
ensuring effective public participation is by ensuring that the grounds set out in Article 27(4)

are considered in facilitating public participation.

Indeed, the Commission on Revenue Allocation (CRA), in its policy on the criteria for

identifying marginalized areas and sharing of the equalization fund, recognizes that:

''Political power and decision-making was centralized and confined at the centre in

Nairobi before promulgation of the new Constitution in August 2010. This perpetuated

marginalisation of some parts of the country, especially far-flung regions and minority

groups, from full participation in social and economic activities. The result has been

significant levels of disparities in economic development among different regions and

communities.''69

The Constitution is explicit that one of the objectives of devolution is to “give powers of self-

governance to the people and enhance the participation of the people in exercise of the

powers of the state and in making decisions affecting them.”70 The Constitution also requires

public participation: in the management and protection of the environment; 71 legislation and

other business of parliament72 and county assemblies73; in financial matters;74 urban areas and

cities.75

The Constitution, further, recognises that ‘the general rules of international law’ 76 and ‘any

treaty or convention ratified by Kenya’77 shall form part of the law of Kenya under this

69
CRA policy on the criteria for identifying marginalised areas and sharing of the Equalisation Fund 2011-2014,
P4 http://www.crakenya.org/wp-content/uploads/2013/10/CRA-Policy-on-marginalisation-criteria.pdf at 20th
April 2016
70
Constitution of Kenya 2010, Article 174.
71
Ibid, Article 69.
72
Ibid, Articles 118.
73
Ibid, Article 196(1)(b).
74
Ibid, Article 201(a).
75
Ibid, Article 184(1) (c).
76
Constitution of Kenya 2010 Article 2(5).
77
Ibid, Article 2(6).
constitution’. This, therefore, commits the public authorities and entities to international

public participation standards.

International Public Participation Framework

Several international legal instruments have enshrined the right of the citizens to participate

in governance. The Universal Declaration on Human Rights states that “everyone has the

right to take part in the government of his country, directly or through freely chosen

representatives.”78 The International Covenant on Civil and Political Rights (ICCPR), 79 the

International Covenant on Economic, Social and Cultural Rights (ICESCRs),80 the African

Charter on Human and Peoples Rights(Banjul Charter), 81 and the Convention on the Rights of

the Child (CRC),82 all advocate for direct participation of the people in public affairs. CRC,

particularly, requires the “provision of information; support, if necessary; feedback,

procedure for complaints; remedies or redress.” 83 Kenya is a state party to all the instruments

above.

The Human Rights Council (HRC) has, on its part, taken a broad approach to include

participation in civil, cultural and social activities of a public nature. 84 The General Comment

No. 25, which is based on article 25 of the ICCPR, the HRC provides that “states have

discretion to determine through constitutions and laws the powers, forms and means of public

participation”.85 The Economic and Social Council (ESC), has also observed that programs

78
UDHR, GA Resolution 207A (III). Article 21(1)(3) available at http://www.un-documents.net/a3r217a.htm
accessed on May 2016.
79
ICCPR, Article 25.
80
ICESCRs Art 13(1) Recognises education as an enabler for people to effectively participate in a free society,
available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx Accessed on 29 May 2016.
81
ACHPRs, Article 13(1).
82
CRC Article 12.
83
CRC/C/GC/12, para. 48. Available at http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-
C-GC-12.pdf accessed on May 2016.
84
A/HRC/18/42, para.5 http://www2.ohchr.org/english/bodies/hrcouncil/docs/18session/A-HRC-18-42_en.pdf
at 29th May 2016.
85
GC No. 25: Art. 25: 12/07/96. CCPR/C/21/Rev.1/Add.7, General Comment No 25 Para 5, available at
http://www.equalrightstrust.org/ertdocumentbank/general%20comment%2025.pdf accessed on 9th May 2016.
that are done without “active and informed participation of those affected are most unlikely to

be effective” and that this is also true for the poor.86 The United Nations Special Rapporteur

on Extreme poverty and Human Rights (UNSREPHRs) concurs with this position. 87 She also

argues that freedom of information, 88 association,89 assembly,90 effective access to justice,91

right to an effective remedy92 and the rights to education93 are fundamental preconditions for

the realisation of public participation. She asserts that in order to participate effectively, all

members of the public must be able to organize, meet, express themselves without

intimidation or censorship, know the relevant facts and arguments, be conscious of their

rights and have the requisite skills and capacity”. 94 The CRC Committee further recognises

that participation should be continuous.95

The Access to Justice in Environmental Matters (Aarhus Convention) stipulates that time and

the focus on the outcome are essential for effective public participation. 96 The World Bank,

on the other hand, has defined public participation as, “A process in which stakeholders’

influence and share control over development initiatives, decisions and the resources

affecting them.”97

86
E/C.12/2001/10,para12,available,at<http://www2.ohchr.org/english/bodies/cescr/docs/statements/E.C.12.2001.
10Poverty-2001.> Accessed on 29th March 2016.
87
Report of the independent expert on the question of human rights and extreme poverty A/63/27413 August
2008 para.22 available at http://www.ohchr.org/EN/Issues/Poverty/Pages/AnnualReports.aspx accessed on May
2016.
88
A/HRC/23/36 27 ICISCRs Article 13.1; UDHRs Article 26.2; CRC Article 29.1; CRPDs Article 24(c).
89
UDHRs Article 20; ICCPRS Article 22; CEDAW Article 7(c); CRC Article 15.
90
UDHRs Article 20; ICCPRs Article. 21.
91
UDHRs 8 and 10; ICCPR Article 14.
92
ICCPR Article 3) (A/67/578.
93
E/C.12/GC/21, para. 27.
94
UN Special Rapporteur on extreme poverty and human rights, Magdalena Sepulveda Carmona.
Recommendations to States: an operational framework to ensure meaningful participation of people living in
poverty. Human Rights Council A/HR/C/23/36 11 March 2013. (UNSREPHR) Para 27 available at
http://www.ohchr.org/EN/Issues/Poverty/Pages/SRExtremePovertyIndex.aspx accessed on May 2016.
95
GC of the CRC Committee, para 13 available at
http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.13_en.pdf accessed on May 2016.
96
Fotiet al., Voice and Choice: Opening the Door to Environmental Democracy, World Resources Institute,
2008,avilable at http://pdf.wri.org/voice_and_choice.pdf accessed on May 2016.
97
World Bank, The World Bank Participation Sourcebook. Washington: 1996. P. xi available at
http://www.tikenya.org/phocadownload/adili%20newsletter%20issue%20135.pdf accessed on 10th April 2016.
UN Special Rapporteur on extreme poverty and human rights (UNSREPHR) has also held

that ‘participation is always embedded in a specific socio-cultural context and set of power

dynamics’98 thus should be done from the ground-up in consultation with the communities.

She, however, proposes that it is important to have a common understanding of what

participation encompasses and what “is an appropriate minimum standard by which to

measure the adequacy and quality of participation with regard to people living in poverty”. 99

She proposes a human rights approach, which places on states obligations: to respect, to

protect, and to fulfil. With regard to public participation, the obligation to respect, requires

states to refrain from interfering with the enjoyment of that right. “The obligation to protect

requires States to take steps to prevent third parties (including business enterprises or private

individuals) from interfering in the right to participation” while the obligation to fulfil

requires “states to facilitate, promote and provide for the full realization of the right to

participation, through appropriate legislative, administrative, judicial, budgetary and other

measures”.100 She further proposed that states should not dominate in all public participation

spaces and that public participation should be a process and not a one off event. The Special

Rapporteur proposes several specific actions that states should take ranging from legal and

institutional frameworks, resources, equality and discrimination, access to information,

accountability, empowerment and roles for national human rights commissions. The steps

include: ensuring meaningful opportunities for public participation is provided; regulation of

the involvement of powerful non-state actors; participation from the start; sufficient resources

for public participation including for possible transport compensation; special consideration

for the most vulnerable communities; capacity building for the public with considerations of

power inequalities; pro-active steps to ensure access to information is guaranteed through

accessible channels; feedback and complaint mechanisms; involvement of stakeholders in

98
Supra n.93, P 18.
99
Supra n.93, P 18.
100
Supra n.93, P 19.
setting the agenda and goals for participatory processes from below among other actions. The

special rapporteur also proposes that judges, lawyers and law enforcement officials should be

trained ‘to enhance judicial oversight and to prosecute any infringement of the right to

participate’.101

The Domestic Legal Framework for Public Participation

Several laws implementing the Constitution of Kenya 2010 have provisions requiring public

participation. The County Governments Act 2012 (CGA) requires counties to promote and

facilitate public participation in the development of policies, plans and delivery of services; 102

the village administrator103 and the village council104 to facilitate and build capacity for

participation of the village unit in governance; and the principles of public participation.105

The principles include: reasonable access to processes that require participation;

consideration for special groups; legal standing for affected groups, especially the

marginalized; involvement and promotion of non-state actors roles. Counties should also

establish ‘modalities and platforms for citizen participation’.106 In fact the Act also gives

responsibility to private citizens to promote ‘effective participation of marginalized and

minority groups in public and political life’. Under Section 100 of the Act registered civil

society organizations can conduct civic education.

The Urban Areas and Cities Act sets as one of its objects and principles, “participation by the

residents in the governance of urban areas and cities”.107 In fact, the Act sets out public

participation as a criteria for classification of a urban areas.108 The Public Finance

101
Supra n.93, P 22.
102
County Government Act 2012 s 30.
103
Ibid s 52(3) (a) (i) (ii).
104
Ibid s 53(2) (a).
105
Ibid s 87(a-g).
106
Ibid s 91.
107
The Urban Areas and Cities Act (2011) s3(c).
108
Ibid s 21(1) (g).
Management Act, Political Parties Act,109 and Intergovernmental Relations Act also have

provisions for public participation’.110 Further, the Ministry of Devolution, the Public Service

Commission (PSC) and the Commission on Revenue Allocation (CRA), have developed

guidelines relating to public participation while the Law Reform Commission has a draft

county model law on citizen public participation. Most of them require selecting stakeholders

that are most affected with consideration for special groups.

Several counties have also passed county legislation on public participation. These are seen to

define public participation and make provision for its management and decentralization The

Nakuru County Public Participation Act, 2014, for example, requires establishment of citizen

participation forums at the sub-county, ward and village levels.111 The Turkana one, on the

other hand, establishes directorate of public participation to be in charge of implementing

administrative activities of public participation for both the county executive and the county

assembly112 and creates county resource centres at the sub-county, ward and village levels to

make available documents, reports and records at no cost.

CONCLUSION

Several themes emerge from the above discussion on the theoretical, background and

normative framework on public participation. The theory points at the need to consider and

address the power differences in bid to achieve meaningful public participation. One main

theme that emerges from the background is that public participation is about empowerment of

the people. The normative framework has dealt with several themes including: the need to

empower the people from within; involvement of the people from the beginning of the
109
Political Parties Act (2011)5(a).
110
Intergovernmental Relations Act (2012) s 29.
111
The Nakuru County Public Participation Bill 2014 section 5 Available at
http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2014/NakuruCountyPublicParticipationBill2014.pdf
accessed on 28th April 2016.
112
The Turkana County Public participation Bill, 2014 Sec 15 available at
http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2014/TurukanaCountyPublicParticipationBill2014.pdf
accessed on 28th April 2016.
process; access to information by the people; linked social injustice to exclusion among

others. In general, the idea from the above discussion is that public participation, apart from

being a democratic right and an exercise of people’s dignity, it is also about bridging the

power differences in the society in order to achieve social transformation and a more just

society. In ensuring that meaningful public participation is achieved, therefore, the focus

should be about countering power differences.

CHAPTER THREE
JUDICIAL INTERPRETATION OF PUBLIC PARTICIPATION IN COUNTY

GOVERNANCE SYSTEM.

THE JUDICIAL PERSPECTIVE.

Introduction.

Several themes emerge from the discussion on the theoretical, background and normative

framework on public participation. The theory points at the need to consider and address the

power differences in bid to achieve meaningful public participation. One main theme that

emerges from the background is that public participation is about empowerment of the

people. The normative framework has dealt with several themes including: the need to

empower the people from within; involvement of the people from the beginning of the

process; access to information by the people; linked social injustice to exclusion among

others. In general, the idea from the above discussion is that public participation, apart from

being a democratic right and an exercise of people’s dignity, it is also about bridging the

power differences in the society in order to achieve social transformation and a more just

society. In ensuring that meaningful public participation is achieved, therefore, the focus

should be about countering power differences. This discussion now turns to the main focus of

this chapter: how the Kenyan courts have interpreted public participation.

Judicial Interpretation of Public Participation

Several cases on the lack of public participation in government affairs under Kenya’s

devolved system of government have been brought before the Courts. In each of these cases,

the decisions have been based on a number of principles, concepts and arguments. Some of

the standards have been imported from other jurisdictions and theories while some can be

attributed to the Kenyan courts’. This section analyzes how the Kenyan courts have
interpreted public participation in the devolved governance context. The discussion will be

around the following themes: The approaches that the courts have employed to determine

whether meaningful public participation has taken place sand the challenges in measuring

public participation.

Approaches taken by courts

Determining what amounts to meaningful public participation has been one of the main areas

that the courts have been called upon to interpret, which in turn depends on the approach

taken by the courts. The approach on the other hand, largely, depends on the definition that is

given to public participation. Depending on the definition, the approach can either be

qualitative and quantitative or both; each of which will require its own measurement tool.

The approach can also be on reasonableness grounds, of which the court needs to establish a

standard. In determining cases on public participation, the courts have recognized that public

participation has a central place under the Constitution of Kenya 2010and Kenya’s devolved

governance.113 In one determination the court said,

''One of the golden threads running through the current constitutional regime is

public participation in governance and the conduct of public affairs. The preamble to the

Constitution recognizes, “the aspirations of all Kenyans for a government based on the

essential values of human rights, equality, freedom, democracy, social justice and the rule of

law.”

It also acknowledges the people’s ‘sovereign and inalienable right to determine the form of

governance of our country. Article 1 bestows all the sovereign power on the people to be

Small Scale Farmers Forum & 6 Others vs. Republic of Kenya & 2 Others [2013] eKLR. Available at
113

http://kenyalaw.org/caselaw/cases/view/91805/ Accessed on 20th June 2016.

exercised only in accordance with the Constitution. One of the national values and principles

of governance is that of ‘inclusiveness’ and ‘participation of the people.”114

The Supreme Court, on its part, has argued that devolution was intended to enhance equity in

resource allocation and “open up the scope for political self-fulfillment, through an enlarged

scheme of actual participation in governance mechanisms by the people, thus giving more

fulfillment to the concept of democracy” 115 The court further contends that devolution as a

required constitutional practice, runs in parallel with an attendant set of values, declared in

Article 10 of the Constitution which includes participation of the people. Public participation,

therefore, has a high place in the context of the devolved system of government, a factor that

should be considered by the courts in determining the right approach in establishing public

participation. A keen look into the cases that have already been determined by the Kenyan

courts indicate several grounds upon which the cases have been determined including: the

stage of an activity at which public participation should be deemed to have taken place;

geographical coverage considerations; the number of people formally involved; whether the

people’s views are considered in the final decision; the nature of an issue requiring public

participation among others.

I) Stage of an activity consideration

The question to ponder here is at what stage, if any, should public participation begin and

end? In the legislative process, for example, the court has ruled, a number of times that it

does not have to be done at the pre-legislative process. 116 In one particular case, the High

Court relied on the Canadian jurisprudence117to argue that, “the fact that the state did not

114
Kenya Small Scale Farmers Forum & 6 Others vs. Republic of Kenya & 2 Others [2013] eKLR para 57,
available at http://kenyalaw.org/caselaw/cases/view/109435/ accessed on June 2016.
115
Advisory Opinion Ref. No.2 of 2013 para 136. Available at http://kenyalaw.org/caselaw/cases/view/91815/
Accessed on 22nd June 2016.
116
Supra n.2 eKLR para 66.
117
Marshall vs. Canada, Communication No. 205/1986, UN Doc CCPR/C/43/d/205/1986(1991). Available at
http://hrlibrary.umn.edu/undocs/html/dec205.htm Accessed on June 2016.
directly involve the petitioners cannot be said to invalidate the whole process”.118 The facts of

the case were as follows: the discussions were at their advanced stage but the public had been

involved just once in 5 years of the discussions. Most of the five years, however, were under

the old constitutional dispensation that did not have explicit provisions requiring public

participation. The court allowed the government to continue with the discussions but also to

allow the petitioners ‘to have full access to the information relating to the negotiations so as

to make appropriate contributions if they so wished in fulfillment of Article 473 of the

Cotonou Protocol’119.

Essentially, therefore, this establishes an option of conducting public participation either just

at the beginning or just at an advanced stage of a process and still satisfies the public

participation requirement. Based on the above decision, the approach being developed by the

courts can be seen as one defining public participation as an event within a process and not

necessarily one driving the process. In addition, the court’s approach also allows public

entities and officials, the liberty to choose when to conduct public participation. Given a

continuum with qualitative and quantitative approaches one at each end, one can establish

that the court’s approach falls short of both the qualitative and quantitative considerations. If

the court had made qualitative considerations, for example, it should have considered whether

the single public participation that had taken place had an impact on the final decision or

whether it kept the people in the implementation process. The quantitative consideration, on

the other hand, should have, for example, considered the number of people, how

representative they were, number of meetings among others. None of these was given

sufficient consideration. The state, for example, was not compelled to facilitate effective

participation and not just making the information accessible to people and hope that they will

Supra n.4 para 69.

118

Cotonou Protocol, Article 4 Available at

119

http://www.europarl.europa.eu/document/activities/cont/201306/20130605ATT67340/20130605ATT67340EN.
pdf Accessed on 20th May 2016.
take an initiative to contribute. In addition, while it is true that, at the earlier stages of the

legislative process the state was not obliged to conduct public participation as the new

constitution had not taken effect, when that became a requirement after the passage of the

new constitution, the court did not take a keen focus on the number of people that

participated, nor whether they were representative of the stakeholders. Therefore, it can be

conclude that its decision fell short of both the quantitative and qualitative considerations.

The court in the Gakuru case120, said,

“It behooves the County Assemblies in enacting legislation to ensure that the spirit of public

participation is attained both quantitatively and qualitatively”.

The Gakuru case was heard at a Nairobi High Court and the court declared Kiambu County

Finance Act 2013 illegal for failure to meet the public participation threshold on public

participation. The case was based on Article 196(1) (b) of the Constitution which reads: “A

County Assembly shall facilitate public participation and involvement in the legislative and

other business of the assembly and its committees”. The petitioner argued that Kiambu

County Assembly did not conduct sufficient public participation in the enactment of the

finance bill. The county had called a few business people to Windsor Hotel, a high-end golf

hotel and country club, to discuss the draft finance bill and also had placed an advert in the

newspaper inviting public views. The petitioner raised two grounds: first that the information

was not well communicated to the members of the public and secondly that the views were

not incorporated in the final draft.

The argument that public participation does not have to take place throughout the whole

process or that the whole process should be considered to determine whether public

120
Robert Gakuru & Others v Governor Kiambu County & 3 Others (2014) eKLR. Available at
http://kenyalaw.org/caselaw/cases/view/97000/ Accessed on June 2016.
participation did take place at some point, has been relied on by the Kenyan courts in many

other instances. Unfortunately, in most of the instances, it has been used to dismiss petitions

that allege lack of sufficient public participation with an effect of lowering the standard of

public participation. In the Moses Munyendo case,121 the court relied on Law Society of

Kenya v Attorney General in which it was held that;

“In order to determine whether there has been public participation, the court is required to

interrogate the entire process leading to the enactment of the legislation; from the

formulation of the legislation to the process of enactment of the statute”122

Consequently, the court dismissed the petition for lack of evidence that public participation

was insufficient. The argument that the entire process leading to the enactment of legislation

should be looked at has been used by the Kenyan courts in many instances without

necessarily ascertaining whether the one off process being relied on was robust and had the

potential to influence the legislative process and or content. Evidently, the qualitative

approach is, therefore, lacking in the court decisions on this ground.

Indeed, even the quantitative considerations are not sufficient as a one-off participation

irrespective of the extent of stakeholder involvement can pass for sufficient public

participation. This was also the case in the Commission for the Implementation of the

Constitution (CIC) Case,123 where the first Amicus Curiae, Katiba Institute, relied on the

Doctors for Life Case to argue that the Leadership and Integrity Act ‘was invalid in as far as

it ignored views of Kenyans on effective enforcement hence defeating the essence of public

participation’, clearly, a qualitative approach. The court, however, argued that public

121
Moses Munyendo & 908 others v Attorney General & another [2013] eKLR. Available at
http://kenyalaw.org/caselaw/cases/view/89783 Accessed on June 2016.
122
Law Society of Kenya v Attorney General Nairobi Petition No.318 of 2012 [2013] eKLR para 51. Available
at http://kenyalaw.org/caselaw/cases/view/87281 Accessed on June 2016.
123
Commission for the Implementation of the Constitution v Parliament of Kenya & 5 others [2013] eKLR para
24. Available at http://kenyalaw.org/caselaw/cases/view/86523 accessed on June 2016.
participation should be determined by considering the whole process leading to the enactment

of the legislation and subsequently ruled that the petitioner had failed to show that public

participation had not been achieved when the whole process is considered from the time CIC

initiated it to its enactment. Similarly, in the Law Society of Kenya v Attorney General, the

court declared that it needed to examine the whole legislative process to determine whether

there was public participation including the parliamentary standing orders, which require that

a bill must be published as a bill and to go through the various stages in the national

assembly. Subsequently, the court did not find the Statute Law (Miscellaneous Amendment)

Act, 2012 unconstitutional on grounds of lack of public participation in its formulation and

enactment. The ‘whole process argument has been used in dismissing cases in several other

instances such as in Association of Gaming Operators Kenya case,124 and the Nairobi

Metropolitan Psv Saccos Union Limited case.125

The Nairobi Metropolitan Psv Saccos Union Limited case which was about the amendment

of clause 6(1) of the Nairobi City County Finance Act of 2013 that changed the motor-vehicle

parking levies from Ksh.140 to Ksh.300 was particularly interesting. In the case, the

petitioner had argued that it failed to meet public participation requirements since it did not

publish the said Act in a recognized gazette. The respondent, on the other hand, argued that

the petitioner had been invited during the budget making process, which preceded the

enactment of the Nairobi City County Finance Act 2013, thus there was sufficient public

participation. The court held that the public was sufficiently involved in the process leading

to the enactment by involving those who could be affected by the decision.

Similar arguments have had some support from the South African jurisprudence that in

considering whether sufficient public participation has taken place, the whole process
124
Association of Gaming Operators Kenya & 41 Others v Attorney General & 3 Others Petition No. 56 of 2014.
Available at http://kenyalaw.org/caselaw/cases/view/95613/ Accessed on June 2016.
125
Nairobi Metropolitan Psv Saccos Union Limited &25; others v County of Nairobi Government & 3 others
[2013] eKLR. Available at http://kenyalaw.org/caselaw/cases/view/93353/ accessed on June 2016.
involved in the issue under consideration should be looked at. Unfortunately for Kenya, this

concept has been used to dismiss many cases.

II) Coverage consideration

In order to achieve meaningful public participation, another important approach is looking at

the extent of its coverage. The coverage can take geographical consideration within the

relevant area or in terms of the extent it reaches the relevant stakeholders and the time period

allowed. Kenyan courts have also relied on this approach in their decisions. In several

instances, the court has ruled that the mode and the manner of giving effect to public

participation will vary from case to case and there must be some clear and reasonable level of

participation afforded to the public.126 In Moses Munyendo case, for example, the court relied

on the South Africa’s Minister of Health

Case; “What matters is that at the end of the day a reasonable opportunity is offered to

members of the public and all interested parties to know about the issues and to have an

adequate say.”127

The coverage focus in the above determination being on ‘members of the public’ and ‘all

interested parties’. In Gakuru case, the court had a special focus on reaching as many people

as possible. It said that Article 196(1)(b) of the Constitution, requires county assemblies to

use as many fora as possible to ‘disseminate information with respect to the intended action’

such as, ‘churches, mosques, temples, public barazas national and vernacular radio

broadcasting stations and other avenues where the public are known to converge’.128

126
Nairobi Metropolitan PSVs Saccos Union Ltd & 25 Others v County of Nairobi Government & 3 Others
(2013) eKLR; Moses Munyendo& 908 Others v Attorney General and Another (2013) e KLR; Richard Dickson
Ogendo& 2 Others v Attorney General & 5 Others (2014) eKLR; and Robert Gakuru& Others v Governor
Kiambu County & 3 Others (2014) eKLR.
127
Supra n.9 para 18.
128
Supra n.8 eKLR para75.
The Gakuru case, in contrast to most cases discussed above, stands out for invalidating an

Act on mainly the lack of public participation at the county assembly. 129 In its decision, the

court largely relied on the South Africa’s Constitutional Court judgments, which in Doctors

for Life International case, argued that representative and participatory democracy should be

mutually supportive. The court stated that direct participation enhances representative

democracy as the citizens become more “actively involved in public affairs, identify

themselves with the institutions of government and become familiar with the laws as they are

made”. The statement above points to the need for government to do everything possible to

carry everyone along. The court, further, in the Gakuru case, relied on the Doctors for Life

case, in its determination that the participatory democracy is more relevant to the relatively

disempowered. This means that in looking at the coverage of public participation, it is

important to consider the power relations in the population and put in place measures to

ensure that the less powerful participate meaningfully. This finding is in line with the existing

theoretical understanding and universal understanding, discussed earlier, on how to ensure

effective public participation takes place. The court, also, argued that it is important that,

“Citizens have the necessary information and effective opportunity to exercise the right to

political participation.”130 The court concluded that that there was inadequate public

participation in the enactment of the Kiambu finance bill based on the fact that only a few

people participated, in one day, at a 5 star hotel and that only one day newspaper

advertisement was done. The newspaper could not reach most of the populace who survive

on less than a dollar per day. Further, the court argued that the content of the advertisement

did not attempt to ‘exhort the public to participate in the process of the enactment of the Bill’

thus had limited reach. The court, therefore, recognizes, as earlier argued, that public

Ibid
129

Doctors for Life International vs. Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC
130

11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC), Ngcobo, J para 129 available at
http://www.justice.gov.za/sca/judgments%5Csca_2008/sca08-086.pdf accessed on June 2016.
participation does not end at making information available nor at empowering the citizenry

and taking care of the power differences, there is need to motivate the people to participate.

In addition, the court in Gakuru case, reasoned that everyone does not have to give an oral

submission in the case of a public participation hearing nor compulsorily have each opinion

incorporated in the final decision even when it contradicts the constitution. However, in the

said situation, the authorities should be able to explain reasons for the deviation from the

community contributions. Irrespective of the circumstances, the court argued that there

should not be a complete black-out of the citizens, even though cost and time can be taken

account of.

Further, with regard to entities that are required to ensure public participation in their affairs,

the court has given a ruling that give guidance on this. In Okiya Omtatah Okoiti case, the

court ruled that the appointment of the board of directors for the Nairobi City Water and

Sewerage Company was unconstitutional for lack of involvement of various stakeholders.

The court ruled based on Articles 10, 73 and 232 that even though Nairobi City County is the

sole owner of the water board, it should ensure participation of the residents for whom the

company exists.131 This, therefore, means that an entity can be compelled to ensure public

participation even when it is not a public entity as long as it provides an essential public good

to the public.

III) Whether people’s views are considered

Okiya Omtatah Okoiti& 3 others v Nairobi City County & 5 others [2014] eKLR, available at
131

http://kenyalaw.org/caselaw/cases/view/104026/ accessed on June 2016.

Public participation would amount to nothing if notices are provided, information

disseminated, public fora held with power relations considerations made but fails to take

account of the views of the public in the final decisions. In the Moses Munyendo case, the

court, relying on South Africa’s New Clicks case132, observed that what matters is that at the

end of the day a reasonable opportunity is offered to members of the public and all interested

parties to know about the issues and to have an adequate say. The phrase; ‘adequate say’

means that the people’s views ought to be considered. The court, in the TISA Case, further

argued that public participation is not just a matter of form, but of substance as well, similar

to the concepts of qualitative and quantitative discussed earlier. 133 In the Gakuru case, the

court relied on the Doctors for life case finding that, by letting people’s voices heard and

taken account of their civic dignity is enhanced and promotes a democratic culture and

pluralistic accommodation.134 Further, the same court relied on the case to argue that the state

has a duty to facilitate public participation in the conduct of public affairs by ensuring that

citizens have the necessary information and effective opportunity to exercise the right to

political participation. Effective opportunity, also points at the need to have the people’s

views considered.

The court went on to make a determination that:

“In my view public participation ought to be real and not illusory and ought not to be treated

as a mere formality for the purposes of fulfillment of the Constitutional dictates. It is my view

that it behooves 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

132
Minister of health & another v New Clicks &8 others para 71, available at
https://en.wikipedia.org/wiki/Minister_of_Health_v_New_Clicks accessed on June 2016.
133
The Institute of Social Accountability & another v National Assembly & 4 others [2015] eKLR para 77,
available at http://kenyalaw.org/caselaw/cases/view/105977 accessed on June 2016.
134
Supra n.18.
my view to simply “tweet” messages as it were and leave it to those who care to scavenge for

it.’’135

In the court’s determination, therefore, public participation should not be done just to fulfill

the statutory requirements; it should be real to influence the final decisions. In the Consumer

Federation of Kenya case the court argued that public participation does not mean that there

should be direct participation of the people in the interviews but that their input is

recognized.136 In order to achieve meaningful public participation, therefore, the courts

approach has been that the people’s input should influence the final decisions. In the Gakuru

case, however, the court referred to Sachs 137 who observed that public views may not

necessarily be binding on the legislature if they are indirect conflict with policies of the

government (although responsiveness to special groups is necessary) but that the government

should keep an open mind and willingness to consider all views.

Challenges in Measuring Public Participation

In the TISA case, the court ruled that the petitioner had not addressed ‘the standard to apply in

order to assess the level of public participation in the legislative process. It dismissed the case

on the basis that the petitioner had failed to demonstrate how the national assembly had failed

to achieve public participation.138 The question is what is the standard for measuring whether

sufficient public participation has been achieved? In the National Citizens Forum Initiative

case, the court ruled that how public participation is achieved is within the discretion of the

county authority and that it could only find violation if shown a specific violation which, it

135
Supra n.14.
136
Consumer Federation of Kenya (COFEK) v The Public Service Commission and the Attorney General
Petition No. 263 of 2013 [2013] eKLR, available at http://kenyalaw.org/caselaw/cases/view/89356 accessed on
June 2016.
137
Merafong Demarcation Forum and Others vs. President of the Republic of South Africa and Others (CCT
41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC), available at
http://www.saflii.org/za/cases/ZACC/2008/10.html accessed on June 2016.
138
Supra n.11.
said, the petitioner had failed to show. 139 In the CORD Case, it was argued that the 5 days

period allowed before the passage of the bill was insufficient. The court relied on the Gakuru

case where the decision in Glenister vs. President of the Republic of South Africa and Others

was cited that the invitation for people to participate should allow people sufficient time to

prepare and time on stage when the hearing is taking place. 140 It should be an opportunity

capable of influencing the decision to be taken. In the case, it was said that the determination

whether a notice complies with the principles depends on the facts of the case. The court also

relied on the Doctors for Life International case to argue that measures to ensure public

participation include: a notice and information about the legislation under consideration and

opportunities for participation that are available to the public. It was also said that in making

a consideration whether public participation was adhered to, the court would ask itself

whether what parliament has done is reasonable in all the circumstances. Again, the court

relied on the Doctors for life case’s factors relevant in determining reasonableness of public

participation namely: rules adopted by parliament for public participation; nature of the

legislation under consideration; whether the legislation needed to be enacted urgently. The

court eventually dismissed the petition.

141
In the CORD case, it was argued that the bill was published on 8th December and made

available to the public on the following day through digital technology in a limited manner.

Also that the material was too bulky with the limited time to allow for any meaningful

participation. In this case, the period for publication of the Bill had been reduced from

fourteen days to one day and the advertisement was only made on the 10th December 2014

for a consultative meeting with the relevant committee of the National Assembly to be held

on the following day. The petitioner argued that civic education was not done and that public
139
In National Citizens Forum Initiative & 3 others v Governor of the County Of Nairobi & 4 others [2013]
eKLR, available at http://kenyalaw.org/caselaw/cases/view/91021 accessed on June 2016.
140
Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & another [2015] eKLR 151,
available at http://kenyalaw.org/caselaw/cases/view/106083/ accessed on June 2016.
141
Supra n.28.
participation was only done in Nairobi. In total, submissions could take place for 3 days and

public hearings could be held for 3days. The court ruled that there was sufficient public

participation considering that the committee had advertised that it would receive oral

submissions for three days and several organizations had managed to participate. In addition,

the court in the Gakuru case, further relied on the Doctors for life case, to concur that

parliament should be allowed discretion to determine how best to facilitate public

participation, which would vary from place to place and that in all cases, parliament should

act reasonably. On what amounts to reasonable, the court further relied on Judge Sach’s

minority judgment in New Clicks Case where he said that it depends on the circumstances of

each case.142 The Judge said that reasonableness is an objective standard which is sensitive to

facts and circumstances. In the case of parliament, the determination of whether public

participation has been observed will depend on; the nature and importance of the legislation;

and intensity of its impact on the public. He added that practicalities such as time and

expense should be considered although on their own they should not justify inadequate

opportunities for public participation. Also, that, parliament’s reasoning that predicated its

conduct should be considered. He concluded that public participation can be seen as a

continuum that ranges from providing information and building awareness, to partnering in

decision-making”. The court further observed that in case of oral submissions, it is not

imperative that every person must be heard orally. Further, the court also concurred with

Merafong Demarcation Forum and Others case that participation should not be seen simply

as an instrument but also through its underlying concept which include: improving the

accuracy of decisions, preserve human dignity and self-respect. He said, therefore, that the

critical question in determining participation is not whether further consultation would have

142
Supra n.20.
produced a different result.143 This means that public participation is not about what a person

or people can contribute to the process but about people themselves.

Another important interpretation by the Kenyan courts was delivered in the Centre for Rights

Education case where petitioner alleged that the President failed to ensure public

participation in the appointment of the County Commissioners. The court ruled in favor of

the petitioner. It argued that the reason public participation was included in the values and

principles of the constitution was a shift from the past where public affairs were done in

secrecy to having them done transparently and with the participation of the people. The court

said that had this been done in this case, it would have allowed members of the public that

wished and were qualified to apply for the positions to do so. The opportunity would also let

anyone that has any issue with any of the candidates, particularly those relating to integrity to

raise them. In the case, the opportunity was not offered. The court invalidated the

appointment.144 Another important element in the measurement of public participation,

therefore, is the extent of openness of a process.

Conflicting interpretations by the courts.

The interpretation of public participation by the Kenyan courts under the devolved system of

government leads to various observations. Firstly, it indicates that there has been active use of

the courts for interpretation and determination of public participation among Kenyans. This

demonstrates high appreciation for public participation. Secondly, the courts have also

consistently emphasized the importance of public participation. However, there has emerged

conflicting interpretation by the courts. For example, on the suggestion that public institutions

have discretion on how to ensure effective public participation, it is not clear what this

entails. In one instance it has been used to mean that institutions, such as the National
Supra n.8.
143

Centre For Rights Education & Awareness (CREAW) & 8 others v Attorney General & another [2012] eKLR,
144

available at http://kenyalaw.org/caselaw/cases/view/81715/ accessed on June 2016.

Assemblies, can determine how they will conduct public participation. In another instance,

however, discretion is with regard to how they will make it easier for the people to

participate. Also, there are contradicting interpretations on direct public participation and

participation through elected representatives. The court has contradicted itself on whether

these should complement or replace each other. Further, the argument that the courts should

look at the whole process in determining whether sufficient public participation has taken

place, has not been applied uniformly by the courts. There are also conflicting interpretations

on the quantitative and qualitative considerations, and the application of the reasonableness

test among others. The differing interpretations could be attributed to a number of reasons

including difficulty in conceptualizing public participation, conservative versus progressive

interpretations by the courts and inconsistent reliance on South Africa’s jurisprudence.

Further, a keen look at the discussed cases indicates that political pressure could be a factor in

determining how the courts arrive at their decisions. Interpretation of the cases involving the

national government, for example, tends to be in their favor while those involving the county

governments can easily be decided either way.

Conclusion.

The differing interpretations present a serious risk on the success of the devolved system of

government in Kenya, which is anchored on, among others, the participation of the people.

This is particularly so as more cases are likely to emerge as people become increasingly

aware of their right to participate directly. In order to remedy the situation, the higher courts

should give clarity on the conflicting interpretations with a focus on the objective of public

participation under the devolved system of government as explained in this chapter. Public

participation is never entirely uniform, as the means of interaction evolve, but the principles

identified in this discussion are sacrosanct.

 CHAPTER FOUR

PROCESS AND MODALITIES FOR PUBLIC PARTICIPATION IN KENYA’S

COUNTY GOVERNANCE AND COMPARATIVE ANALYSIS.

Introduction.

It is trite that a whole battery of methods, not merely of formal consultation, of giving the

public opportunities to participate in decision-making must be put in place to guarantee

participation.145 This underscores the need for sites, modalities, policy framework and

statutory requirements for public involvement in decision making. The devised scheme must

entrench innovative public engagement mechanisms to ensure public participation. A clear

and legally entrenched mechanism of public participation is borne by the reality that the

county governments and institutions may deploy participatory mechanisms for manipulative

and cynical purposes.146 The devolved government system therefore requires a healthy system

of participatory channels for public engagement.

Public participation spaces, processes and structures

A participatory environment can only be realised by creating an enabling environment for an

autonomous and vibrant public to emerge and meaningfully engage with the county

governments.147

145
N McIntosh “Report of the commission on local government and the Scottish parliament’’ (1999)12,
available at https://greens.scot/sites/default/files/Policy/RenewingLocalDemocracy_final_v2.pdf accessed on
June 2016.
146
S Scarrow “Direct democracy and institutional change: a comparative investigation’’ (2001) 34(6)
Comparative Political Studies 651-665, 652, available at
http://web.iaincirebon.ac.id/ebook/moon/LocalMatters/Direct%20Democracy%20and%20Institutional
%20Change%20-%20Scarrow.pdf accessed on June 2016.
147
Good Governance Learning Network “Review of the white paper on local government: A civil society
perspective’’ (2007) 9(5) Local Government Bulletin 13, available at http://ggln.org.za/solg-2010-recognising-
community-voice-and-dissatisfaction.pdf accessed on June 2016.
I) Citizen Awareness

A knowledgeable citizenry with access to a range of information enables participation in

public life. For participation to be successful, the public must be aware of their role in

governance and have access to information. This implicates the need for public awareness of

rights and responsibilities and knowledge of the means or avenues through which they can

exercise them.148 It extends to the need for knowledge amongst the public of the spaces or

opportunities for engagement with the government. It is also important that the framework for

provision of information serves an educative purpose by enabling the public to learn about

democratic processes.149 As Heyden et al have pointed out, ‘information can be transferred in

large amounts without any understanding or knowledge being generated.’ 150 This arouses the

need for the information to be in a form and be provided in a manner that the public can

understand and use effectively.

It is based on this understanding that that county assemblies are obliged to conduct their

‘business in an open manner, hold sittings of their committees in public and to facilitate

public participation and involvement of citizens.’ 151 This regime is undergirded by the

recognition of the right to access information held by governmental authorities.152

Furthermore, the State has an obligation to publish and publicize any important information

affecting the nation.153 The County Government Act provides legislative basis for access to

148
A Omollo “Devolution in Kenya: A critical review of past and present frameworks’’ in Mwenda AK (ed.)
Devolution in Kenya: prospects, challenges and the future (2010) 14-35, 17, available at
http://webcache.googleusercontent.com/search?q=cache:WUNUXw76-rIJ:www.ieakenya.or.ke/downloads.php
%3Fpage%3DDevolution-in-Kenya.pdf+&cd=1&hl=en&ct=clnk&client=firefox-b-ab accessed on June 2016.
149
R Andrews et al “Supporting effective citizenship in local government: Engaging, educating and
empowering local citizens’’ (2008) 34 (4) Local Government Studies 499, available at
http://www.tandfonline.com/doi/pdf/10.1080/03003930802217462 accessed on June 2016.
150
C Heyden et al “Information poverty in the knowledge society: Better government for older people’’
Research Paper 6 (2001, 2), available at https://www.jrf.org.uk/sites/default/files/jrf/migrated/files/034.pdf
accessed on July 2016.
151
Article 196(1) (a) (b) of the 2010 Kenyan Constitution.
152
Article 35(1) of 2010 Kenyan Constitution.
153
Ibid Article 35(3).
information held by county governments.154 Lastly, the county governments are obligated to

‘establish mechanisms to facilitate public communication and access to information in the

form of the media with the widest form of outreach in the county.’155

II) Capacity building

Supporting public participation initiatives with capacity building initiatives leads to better

local decision making.156 This is in recognition of the fact that the public need knowledge and

skills on execution of their responsibilities. The implication of this is the need to develop the

knowledge, skills and operational capacity of individuals and groups on how to achieve their

purposes.157

The motivation for capacity building is to create a public that is willing, able and equipped to

get involvement in public life.158 It is therefore incumbent upon the government to go beyond

simply providing people with opportunity to participate which cannot lead to realisation of

this ideal. Instead the government must disseminate the necessary information to citizens and

help them acquire the skills and confidence that they need in order to become more active in

the governance process. It is essential therefore for civic education to enable citizens to

become more active in public affairs.159 The County Government Act imposes an obligation

on each county to establish a civic education unit and implement an appropriate civic

education programme.160 However this fails to impose an obligation on the county

154
Section 96 of the County Government Act.
155
Ibid Section 95.
156
D Clapham et al “User participation in planning for housing: Is small really beautiful?’’ In Stoker G (ed.)
The new politics of British local governance (2000) 215-233, available at http://eprints.gla.ac.uk/102773/
accessed on July 2016.
157
M Okello et al “Participatory urban planning toolkit based on the Kitale experience: A guide to community
based action planning for effective infrastructure and services delivery’’ (2008) 23, available at
https://practicalaction.org/docs/ia3/participatory-urban-planning-toolkit-kitale.pdf accessed on June 2016.
158
A Oldfield “Citizenship and community: Civic republicanism and the modern world’’ (1990) 62, available at
https://www.amazon.com/Citizenship-Community-Civic-Republicanism-Modern/dp/0415048753 accessed on
June 2016.
159
A Gutmann “Democratic education’’ (1999) 8, available at
https://sites.google.com/site/analyticsummariesinphilosophy/home/amy-gutmann-democratic-education
accessed on June 2016.
160
Sections 99, 100 & 101 of the County Government Act.
governments to explore other avenues for capacity building to acquire skills for better

engagement with the government. In fact, it is stark that the whole regime of regulatory

framework does not make mention of the need to engage in capacity building.

III) Integrated development planning

Integrated development planning is ‘a process through which devolved governments can

establish a development plan for short, medium and long-term.’ 161 Planning enables the

realisation of such goals as social inclusion, economic regeneration, environmental

conservation and efficient delivery of services given that it avails the requisite holistic

framework that involves all stakeholders. This is achieved due to the fact that integrated

planning infuses stakeholder commitment, ownership, pooling of resources and coordination

in undertakings.162

A key principle underpinning the planning process is public involvement. 163 This is motivated

by the reality that planning is no longer to be regarded as a purely technical or scientific

exercise but as a process that rests to an extent on value judgments about desirable futures,

including the judgments of the communities that are affected by such decisions. 164 It is

therefore imperative that the devolved governments encourage public engagement in matters

that affect their community and influence the decisions that implicate the needs and interests

of their locality.165

161
P R Reddy “Democratic decentralization and local democracy in South Africa re-examined: quo vadis?’’
(2010) 29 (3) Politeia 66-67, 71, available https://localdemocracy.net/2010/01/01/democratic-decentralisation-
and-local-democracy-in-south-africa-re-examined-quo-vadis/ accessed on June 2016.
162
S Owen et al “Bridging the gap: An attempt to reconcile strategic planning and very local community-based
planning in rural England’’ (2007) 33(1) Local Government Studies 51.
163
J Morphet RTPI: “Scoping paper on integrated planning’’ (2004) 8, available at
http://lec.sagepub.com/content/23/1/58.abstract accessed on June 2016.
164
N Taylor “Urban planning theory since 1945’’ (1998) 32, available at https://uk.sagepub.com/en-
gb/afr/urban-planning-theory-since-1945/book208707 accessed on June 2016.
165
K Hogg “Making a difference: Effective implementation of cross-cutting policy’’ (2000), Scottish Executive
Policy Unit, available at http://www.scotland.gov.uk/library3/governemnt/effect.pdf accessed 3 June 2016.
The county governments have an obligation to work towards the attainment of developmental

objectives arising from the welfare demands of citizens as envisaged in the Constitution.

These include the socio economic rights demands entrenched into the Constitution including

provision of housing, health and education services, water and sanitation which service

provision are within the competence of this level of government.166 Effective realisation of

these constitutional aspirations implicates the need for planning. This argument is buttressed

by the fact that to meet these challenges, the counties have the onerous task to develop

visions for their areas. To do this, public participation in integrated development planning

frameworks are of necessity. The County Government Act provides for public participation in

the planning processes.167 The legislation also provides that the development of county

integrated development plans and their amendment should also involve public

participation.168 Despite the elaborate planning framework, poor resourcing and enforcement

of the rules is likely to pose a huge challenge. A detailed framework for information

gathering should be given legislative grounding. Legislation should provide for prioritisation

of resources on the basis of evidence based facts. Evidence based plans should use

community based monitoring systems. This must also recognise the critical role of civil

society engagement in information sharing and monitoring and evaluation.

IV) County government budgeting

There is need to link planning and budgeting. The legislative framework should make the

integrated planning the basis for identifying programmes, projects and initiatives aimed at

improving the welfare of citizens. All appropriations and expenditures should be founded on

plans. The Kenyan legislative framework for county budgeting is inadequate for public

participation. The Public Finance Management Act provides for the creation of a County

166
Article 35 of the 2010 Kenyan Constitution.
167
Section 115 of the County Government Act.
168
Section 108 & 112 of the County Government Act.
Budget and Economic Forum composed of members of the county executive committee and a

number of representatives of various interest groups for consultations on the county budget,

economy and financial management.169 However this is not adequate to enable public

participation.

PUBLIC PARTICIPATION: THE SOUTH AFRICAN EXPERIENCE

I) South African experience on citizen awareness

In contrast to the Kenyan regime, South Africa’s Municipal Systems Act (Systems Act) has

adopted a creative use of the office of the municipal manager as a conduit for information

regarding public participation to the local community. 170 One of the critical responsibilities

imposed on the municipal manager is the publication of various notices to inform the public

of proposed policy formulation or decision making and inviting their participation in such

processes. The municipal manager must issue notices informing the public of pending council

meetings171 and invite public participation in the discussion of the municipality’s annual

report.172 In order to enable informed participation, the municipal manager must also supply

copies of the annual report to the public, interested organisation and the media.173

Regarding legislation, the municipal manager must publish proposed by-laws for public

comment.174 Upon adoption, the by-laws must be published in the Provincial Gazette and in a

local newspaper to enable public access.175 The municipality must keep and maintain a

compilation of its by-laws.176 In addition, all notices that are published in the Provincial

Gazette must be displayed at the municipal offices. 177 The municipal manager is also
169
Section 137 of the Public Finance Management Act, No. 18 of 2012.
170
Section 18 of the Municipal Systems Act.
171
Ibid Section 19.
172
Ibid Section 46(3) (a).
173
Ibid Section 46(4) (a).
174
Ibid Section 12.
175
Ibid Section 13.
176
Ibid Section 15.
177
Ibid Section 21(3).
envisaged to notify the public of the adoption of integrated development plan, avail copies of

the plan and summaries.178 The municipal manager must also report to the public on the

performance management system179 which includes provision of information on key

performance indicators and performance targets.180 Lastly, the municipal manager is obligated

to communicate to the public any parts of the code of conduct for staff members that affect

the local community.181

The South African government has also recognised the role public funded information centres

can play in providing the public with information by setting up Thusong Service Centres and

Youth Advisory Centres.182 The Thusong Service Centres link the public to the government

by availing information on government programmes and activities. Similarly, the Youth

Advisory Centres provide information targeting the youth. 183 These innovative initiatives are

vehicles through which the South African government has been able to provide information

on government activities to the public especially those in the rural areas.

The Kenyan regulatory framework fails to ensure that the public has notice of meetings as

detailed in South Africa’s regime. There is need to ensure that where notice are prescribed, it

must accord the public sufficient period to analyse the policy proposals of the county

government to ensure effective participation in deliberations. Moreover, access to

information and its costs are not regulated in order not to hinder obtaining of requisite

information. There is also the need to ensure commitment of duty bearers to make the access

to information system work by inculcating a culture of proactive release of information. This

178
Ibid Section 25(4).
179
Ibid Section 41(e) (ii).
180
Ibid Section 44.
181
Ibid Section 70(2) (b).
182
N Magadla “Making information centres work for the poor” (2008) 14 (3) Transformer 9, available at
http://www.afesis.org.za/local-governance/local-governance-articles/346-making-information-centres-work-for-
the-poor.html accessed on June 2016.
183
Supra n.38.
will lead to the entrenchment of a culture amongst public officials of sharing information to

ensure the release of adequate information to the public.

II) South African experience on capacity building

South Africa’s Municipal Systems Act, for example, recognises and accords the public a

prominent role in the governance of local authorities. The statute obligates the municipality to

develop ‘a culture of municipal governance that complements formal representative

government with a system of participatory governance.’184 In pursuit of the objective of

entrenching participatory governance, the statute imposes a duty on the municipality to create

conditions for it. This obligates the municipality to build the capacity of the public to enable

members of the community to participate in municipal affairs. In order to realise this, the

municipality is enjoined to use its resources and budget for public participation annually. It is

also the duty of the municipality to build the capacity of its councillors and staff to foster

public participation.185

The municipality has an obligation to put in place mechanism and processes to enable public

participation.186 The role of the municipal manager in facilitating the realisation of this goal is

crucial. This is because it is this office that has been vested with the responsibility of

implementing processes and overseeing mechanisms for public participation. The municipal

manager is further obligated to structure the municipal administration in a manner that

enables the public to participate in the affairs of the municipality. An example of how the

municipal administration has been structured to facilitate public participation is providing

that persons who cannot write and put their comments in writing are assisted to do so.187

184
Section 16 of the Municipal Systems Act.
185
Ibid Section 16(6) (ii).
186
Section 17(2) of the Municipal Systems Act.
187
Ibid Section 21(4).
In 2003, the South African government created a programme of community development

workers in an effort to deepen democracy at the local level by giving citizens direct access to

government.188 The community development workers are deployed to municipalities to enable

them bridge the gap between the government and the public. 189 The programme aims at

bringing public services closer to the people and to ensure that information on services and

development opportunities are accessible so that they may be more effectively used. The

programme underscores South Africa’s recognition of the importance of experiential

learning, rather than formal class based training, in acquisition of skills and knowledge of the

services offered by municipalities and political processes.190

South Africa’s initiatives to support public participation with civic education have been

credited for the increase in participation at the local level. 191 Kenya should impose an

obligation on the county governments to adopt a range of training courses to target the public

and enhance their ability to participate in the availed forums. The county administration and

other staff should also be trained in order to ensure that they not only facilitate but also

respond to public input.

III) South African experience on integrated development planning

South Africa’s Municipal Structures Act identifies the two primary actors in the integrated

development planning management as the executive mayor and the executive committee and

188
R Baatjies & Z Hintsa “Community development workers: At the heart of participatory democracy and
developmental local government’’ (2007) 9(2) Local Government Bulletin 10 available at
http://socialwork.journals.ac.za/pub/article/view/270 accessed on June 2016.
189
Ibid
190
J Annette “Education for citizenship, civic participation and experiential learning and service learning in
the community’’ in D Lawton et al (eds.) Education for citizenship (2000) 77-92, available at
https://www.researchgate.net/publication/237462583_Education_for_citizenship_civic_participation_and_exper
iential_and_service_learning_in_the_community accessed on June 2016.
191
SE Finkel “Civic education and the mobilization of political participation in developing democracies’’
(2002) 64(4) The Journal of Politics 994-1020, available at
https://www.princeton.edu/csdp/events/Participation2000/finkel.pdf accessed on June 2016.
imposes a legal duty to ‘manage the integrated development planning processes’.192 The

preparation of the integrated development plan incorporates public participation. 193 This is

done by the establishment of a mechanism for public participation which incorporates public

comments. Facilitation of public participation is an aspect of integrated development

planning for which the municipal manager is responsible.194

With respect to South Africa, a number of shortcomings have been identified in the integrated

development planning process and Kenya can learn lessons from these criticisms. The

process has been criticised for inadequate public understanding of the core economic and

social strategies that underpin such plans. In addition, it has been argued that the process

frequently fails to capture the strategic choices that must be made in allocating state resources

given that the public are often unaware of the practical implications of such plans for

maintaining and expanding existing infrastructure, services and development undertakings. 195

The same challenges have not been addressed in the Kenyan framework thus will hinder

public participation in planning. There is need for the adoption of a simplified integrated

development process that is understandable and available to the public. Lastly, sectoral and

geographical desegregation of the planning process should be entrenched to ensure that input

is tied to actual progress within the different sectors as well as delivery on the ground.

IV) Tanzanian and South African experience on budgeting

Tanzania and South Africa have a regulatory framework for public participation in the

budgeting process. Participatory budget-making is envisaged in Tanzania by provision for a

192
Section 30 of the Structures Act.
193
Ibid Section 28.
194
Ibid Section 55(1) (n).
195
Good Governance Learning Network 13 available at http://ggln.org.za/ggln-state-of-local-governance-
publication-2012.pdf accessed on June 2016.
bottom-up budgeting approach through the ward development committees.196 In South Africa,

the management of municipal finances and budgeting in South Africa is regulated by the

Municipal Finance Management Act (MFMA). The MFMA provides that the process should

be open and transparent.197 It has been noted that the practice has rarely adhered to these

standards. Moreover there has been noted a need to educate councillors and the public around

budget literacy to enable them engage more critically with budgeting processes. This has led

to calls for strengthening of municipality’s relationship with the public.198

The need for public participation in the municipal budget process in South Africa informs the

MFMA provision that a draft budget is tabled by the end of March of each year, so that there

is enough time for public input until the budget is finally adopted towards the end of June of a

year.199 This seeks to protect the integrity of democratic and participatory municipal

budgeting.200 Kenya lacks such a requirement that would give the public adequate time to

interrogate the county government budget.

Moreover, there is need for budget literacy capacity building as a key ingredient of effective

citizen participation. There is need for a requirement for disaggregation of budgetary

information to enable the citizenry to appreciate how it will affect them. Access to budget

information and citizen involvement in all stages of budget preparation process is only useful

where budget information is appropriately disaggregated to ensure maximum transparency

with regard to cost per sector, sub county, ward and village. Only then can citizens appreciate

their direct involvement in a process that makes meaning for them.

Conclusion.
196
Section 32(f)-(h) District Authorities Act.
197
Section 42 of the Municipal Finance Management Act.
198
Supra n. 51.
199
Section 42(5) of Municipal Finance Management Act.
200
J Mettler & K Smith “Bulk electricity prices, exemptions & the demise of local democracy?’’ (2008) 10(3)
Local Government Bulletin 5, available at
http://www.academia.edu/7306148/Examination_of_centralisation_practices_in_South_African_Local_Govern
ment accessed on June 2016.
The critique has shown that few formal and statutory spaces designed for public engagement

in the governance process has been provided in the Kenyan regime for county governance.

This is a clear demonstration of the inadequacy of the framework. Moreover the few spaces

and opportunities provided for participation do not guarantee success as the capacity of the

public to engage in an informed manner in the processes has not been ensured.

Failure to provide the public with an enabling environment for participation is a glaring

lacuna in the scheme. It should also be pointed out that even where informed participation is

achieved there are no in built mechanisms within the system to ensure that the public input is

taken into account in decision making and implementation.

CHAPTER FIVE

CONCLUSIONS AND RECOMMENDATIONS

Conclusions.
This study was premised on the fact that one of the objectives underpinning the adoption of a

devolved system for government in the Constitution of Kenya, 2010 was the need to entrench

public participation in governance. The study has interrogated the adequacy of the legal and

policy framework adopted by Kenya to realise this constitutional aspiration. It has therefore

identified the opportunities provided for public participation within the devolved

governments and compared their structure to the regimes adopted in South Africa, Uganda

and Tanzania in order to analyse their adequacy.

The study has established that public participation is a ‘continuum that ranges from providing

information and building awareness, to partnering in decision-making and implementation.’

Thus the golden thread that must run through the suite of the county governments’ legal and

policy framework is the provision of opportunities and facilitation of participation by

providing an enabling environment. However, as critiqued in the above chapters of this study,

the architecture and design for public participation in county governance in Kenya is

inadequate to guarantee meaningful and effective public input in the governance of this level

of government. It has been shown that even courts have had conflicting interpretations on this

issue. The courts have not been able to come up with a standard formula to measure what

constitute public participation. The standard of prove of what entails adequate public

participation has been placed so high and this has been used to dismiss most of public

participation based cases. The structure fails to provide adequate opportunities for public

participation. In addition, it insufficiently imposes a duty on the county governments to

facilitate public participation and to ensure that the public are enabled to seize the

opportunities for participation. In any case, where the framework provides for opportunities

to engage in public debate and dialogue, there is no guarantee that the public can

‘meaningfully engage’ in the process due to the absence of effective structures of ensuring

the input feeds into the decision making and implementation process.
Recommendations

Drawing from the preceding chapters of the study, a number of legal and policy interventions

can be made in order to reform the county government public participation framework to

guarantee its effectiveness.

I) Reform options for creation of public awareness

To create an enlightened and empowered public that can effectively engage in the governance

process there is need to create opportunities for accessing information through the adoption

of online tools, one stop shops and call centres that make it easier to begin to engage with the

county governments. This is even more necessary given the need to involve young people

who increasingly form the bulk of the Kenyan population. Moreover, there is need for legal

guarantee of provision of information in formats accessible to persons living with disabilities

and translation of the same to local languages for accessibility.

Well-equipped and managed information centres should be established up to the village

levels. These centres should be furnished with all important critical government documents

such as County Fiscal Strategy Papers, County budget documents including approved budget

and estimates, County Budget Review and Outlook Paper and the County Integrated

Development Plan among others. The information centres should be furnished with relevant

documents on a timely basis to ensure that citizens have access to information prior to public

forums for meaningful participation.

County governments should have an obligation to provide sufficient notice of meetings to

enable the public to prepare to attend and participate effectively in consultations. To bring

this to fruition, funds should be designated to facilitate the process of creation of public
awareness. This can be realised by designation of budgetary quotas towards funding public

awareness initiatives.

There is need to sensitize the public and county government officials on importance of public

participation. This is to enhance commitment towards implementation. A mechanism for

redress where the public can seek recourse when information is unduly withheld should also

be introduced. Moreover penalties should be specified for such acts to deter any public

officials from withholding information that would aid participation by an individual in the

governance process.

II) Reform options for capacity building

To ensure effective public involvement in policy formulation and implementation there is

need to build capacity building initiatives within the participatory framework and institutions.

To further this goal, a national statutory body should be created to spearhead capacity

building efforts. Moreover, adequate budgetary provisions should be made to enable the body

to effectively carry out its mandate.

Majority of the population are not well informed about the duties and responsibilities of the

county government, their rights and civic duties; amongst others. Civic education needs to be

rolled out throughout the county in a consistent and continuous manner. To do so, the

counties need to invest adequate in human and financial resources. Adequate budget and

trained civic educators with clear civic education implementation plan are important to

achieve this. County governments should also encourage training in local language and the

use of creative media such as drama, art and music, and make adequate budgetary provisions

and work plans for the training seminars. County governments should also build the capacity

of public officers on social accountability including participatory decision making and other

participatory methodologies. There has been an assumption that public officers know,
understand and appreciate public participation. This assumption has led to poor roll out of

public participation; resistance by some of the public officials; and a furor of public forums

that have been meaningless.

In addition, a specific statutory obligation should be imposed on the county governments to

organise for public training on various subjects that would enhance public participation in the

governance process. In order to ensure effectiveness of the envisaged training, it must be

sensitive to and target concerns of different social categories of inhabitants of that particular

county.

III) Reform options for integrated development planning

To strengthen the participatory framework for planning there is need decentralise planning to

the lowest level, the village, by embracing a bottom up participatory model. There should

also be a linkage between the village level and the county level to ensure synergy of plans.

There is need to impose a statutory obligation on the county governments to maintain and

publicly disseminate a calendar of all planning meetings. The county planning data should

also be disseminated within an adequate stipulated time to enable informed engagement.

IV) Reform options for the budgeting process

The statutory framework for public participation in the county budgeting process should be

enhanced. County financial data should be shared with the public through citizen budgetary

forums within stipulated time prior to the county budget formulation to enable informed

discourse. In order to ensure public input is taken into account, development budget funds

should not be approved unless approved by citizen forums.

County governments should establish and operationalise County Budget and Economic

Forums. This is aimed at ensuring integrity and capability of committees to perform

effectively in the development of counties. County governments should engage in democratic

or popular processes in the selection of committee members of the forum. The popular

process injects integrity into the process. Because the popular process will not always

guarantee the best expert. The forums should comprise of individuals with specialized

knowledge and information.

V) Reform options for service delivery performance management

Taking into account the fact that Kenya’s legal framework fails to provide for public

participation in service delivery there is need for a wide array of interventions. The citizen

forums should be conferred with a clear mandate and power to evaluate and monitor service

delivery. The citizen forums should be given statutory powers to enforce accountability from

duty bearers. In addition, the county governments should create a county monitoring that will

in discharging its functions issue social audits, citizen report cards and score cards to enable

the public evaluate service delivery. To complete this envisaged regime, county governments

should have fixed time frames within which to report to citizens on performance. Such status

reports should be comprehensive but simple to enable ordinary members of the public to

appreciate them.

VI) Reform options for citizen forums

Citizen forums, their mandate and powers should be protected in statute, with operational

procedures detailed in implementation guidelines. The system as regulated at the moment on

provides for the establishment of the forums but lacks the regulatory framework to undergird

their operations. It must be appreciated that the success or failure of the citizen forums will

depend on the operational framework and not mere establishment.

Citizen forums should be fairly representative and inclusive of all stakeholders and thus cut

across youth, women, marginalised groups to represent community interests. It is important

that this is given legal grounding for to avoid any attempts at using the citizen forums as

political platforms and thus diluting the representational role the forums are envisaged to

play.

VII) Regular reporting by county governments

Reporting should aim at creating a culture of accountability both amongst public officers and

citizens exacting accountability. County governments should submit periodic reports e.g.

reports on the Status of implementation of the County budget and the Governor’s annual

report on public participation to the citizens through their committees.

VIII) Strengthening of Civil Society Organization's civic education capacity and

programmes.

Civil society are key players in establishing effective public participation systems and county

government should take advantage of the social capital, skills and knowledge in civil society

organizations to establish the mechanisms and platforms for engagement of the public. Civil

society organisations should also create spaces and invite the State and public officials in

order to have greater influence and impact in governance processes and development

implementation.

Civil society organisations at the county level should deepen and strengthen their civic

education programs in order to promote active citizenship. They should also strengthen their

capacity and that of the communities in participating in devolved governance processes,

review of performance by their county governments and to exact accountability and improved

delivery of public services.