Engaging in a public participation law
“Participation” is not new to Kenyan law. The Environmental Management and Coordination Act of 1999 stresses the importance of the principles of sustainable development — later recognised as a national value in the Constitution. Public participation in developing policies, plans and processes for the management of the environment is one of those sustainable development principles. Yet, 10 years after the Act, studies suggested that participation was less effective than it could have been. Reasons included that the law promoting participation was not enforced, information needed for the public was often hard to find or to understand, language used was incomprehensible (being both only in English and using obscure and technical words) and because the public were unaware of their roles. This makes participation hard.
The Constitution gives prominence to public participation: As a general national value, in environmental protection, lawmaking and other business of Parliament and county assemblies, and as a principle of public finance. People’s participation in the “exercise of the powers of the state and in making decisions affecting them” is one of the objectives of devolution.
People are quite aware of the Constitution’s stress on participation, but there is some sense of disappointment in what has been achieved.
LOTS OF LAWS
Paradoxically, perhaps, there is an astonishing amount of new law on participation. The Statutory Instruments Act — about making regulations under Acts — requires consultation with those likely to be affected before regulations are made. The Public Finance Management Act speaks of the obligation of the Parliamentary Budget Office to respect the principle of public participation, and the duty of the Cabinet Secretary responsible for Finance to ensure participation in the entire budget cycle. Regulations on participation in budgeting may cover procedures respecting the special needs of people who cannot read, and people with disabilities, women and disadvantaged groups.
The Land Act stresses participation as a guiding principle for the work of the National Land Commission. The Water Act says there must be mechanisms for “the public and communities to participate in managing the water resources”. The National Police Service Act encourages community policing, including public participation “in the maintenance of peace”. Parliament is supposed to ensure public participation in the ratification process of treaties. The National Authority for the Campaign against Alcohol and Drug Abuse, must “coordinate and facilitate public participation in the control of alcohol and drug abuse”. The IEBC too must respect the principle of public participation.
The Fair Administrative Action Act of 2015 deals with situations when possible action by the public service is likely to affect the legal rights of the public or some group. The administrator making the decision must issue a public notice inviting public views, and those views must all be considered along with relevant facts. Having made the decision, the administrator must give reasons for the decision and say how an appeal may be made against the decision. The Public Service (Values and Principles) Act provides that public services must facilitate public participation and involvement in the promotion of values and principles of public service, through citizens’ forums, village councils or elected leaders, and there is a list of types of groups that must be included in county forums. And, as the Act requires, the Public Service Commission has developed guidelines for the involvement of the people in policy-making. These must include adequate opportunity to review draft policy and to comment, an opportunity to be heard by the policy makers and notification of the final draft of the policy and whether or not it incorporates their views.
Some of the law talks about “stakeholders” rather than the “public” participation. For example, there must be effective participation of farmers in governance of the agricultural sector. When information and education campaigns on tobacco are conducted, individuals and groups affected by tobacco growing must be involved. And those infected and affected by HIV-Aids must be involved in information campaigns. The Biosafety Authority must provide for public submissions if there is any application to place a genetically modified organism on the market.
Some national laws deal with participation at the county level. The Law Reform Commission produced a model law on public participation, and a considerable number of counties have enacted their own Acts on participation and public petitions , including Isiolo, Nairobi, Elgeyo Marakwet, Meru, Embu, Vihiga, Machakos, Nyeri and West Pokot. The Ministry of Devolution has produced a very useful guide for counties on how to carry out public participation.
And now, Busia Senator Amos Wako has introduced to the Senate a Public Participation Bill. With all the existing laws, how can this be useful? At present, participation seems to be rather fragmented. Different sectors in the governments, at national and county level, will rely on the particular laws that apply to them.
In Kenya and elsewhere, there is a great deal of experience of participation. The methodology may vary according to geography, education, technology and topic, but some principles for effective participation seem to be fairly universal. A crucial point is that being informed — even being asked what you think — is not participation. What matters is the genuine possibility of influencing the outcome of a decision-making process.
Important points are; People’s participation should be voluntary, there should be civic education for the public about the issues, and the authorities which have to make decisions should not wait passively for the public, but should positively encourage them to participate.
Then, participation should not be a matter of tokenism: It must be an opportunity for genuine engagement. Thus means the opportunity must come when decisions have not already been made, and those making decisions must keep open minds and genuinely consider the public contribution. The opportunity must be inclusive, certainly not targeting only those who will agree with the authorities making the decision, but based on equality, and on respect for the dignity of everyone involved. To make the opportunity meaningful, the public must be informed in good time about the issues, the background, and how participation can take place. The few days that parliament often gives the public is quite inadequate. Necessary information must be presented clearly, and in a way that people will be able to understand.
When the final decisions are made, there must reporting back to the public about how public participation affected the decisions, and if it did not, why not. And the authorities must evaluate their own decision making processes so that public participation can become more useful.
SOME POSSIBLE MECHANISMS
Going beyond principles: Rather than leave participation to each individual agency, might it be a good idea to require agencies to designate participation officers? Indeed, might it be sensible for the government to set up a general agency to give guidance on participation? Otherwise, a lot of reinventing of the wheel is likely to go on.
But a cookie cutter approach (one size and shape fits all) does not seem wise. There is a tendency — shown in the Wako Bill — to envisage participation as an event, with a venue. Yet, there are many ways to carry out participation, only some of which involve public meetings. Focus groups of various types, and written submissions, are among a very wide range of techniques that have been developed to encourage effective public input. Indeed, there is grave doubt as to how far the standard format of public consultation meetings is effective — or cost-effective. I have personally attended meetings at which a battery of senior public servants sat while one made a presentation on a document that no one in the audience had seen, followed by a comment from a public think-tank, leaving few minutes for the public (few of whom had much knowledge of the issues) to make any input.
A new law could be useful, but there is some risk that it will not add much, because everything it says has already been said in other laws, though no law is comprehensive.
Jill Cottrell Ghai is a director at the Katiba Institute