PP can perhaps help to compensate for the democratic shortcomings of our political system

Prof Makau Mutua is someone I suspect people tend to either agree strongly with or disagree strongly. At this moment I am doing both.

Constitution in schools

In his weekly article in the Sunday Nation he insists that children in school must be taught the constitution. The constitution must become “second nature to every citizen”. And “To become a Katiba rule of law society we must start with the toddlers”.

I am not absolutely sure that we need to teach toddlers the constitution as such. But I would agree that ideas like the rule of law (a national value and absolutely central to the success of any constitution) can begin to be taught from a very early age.

And it’s not just a question of making the children obey rules. Indeed, I suspect that has been a central theme of Kenyan education for a long time – and has not done us a great deal of good. What is necessary is for children to understand that everyone must follow the law – so teachers must do so, and pupils must understand what the rules are and see that teachers follow them.

One encouraging thing is the number of initiatives around the country being taken, by citizens especially, to teach young people about the constitution – if not in schools.

And this take me to a concern: I wonder if the powers that be actually want people to be familiar with the constitution. Do they really want everyone to know their rights – and to understand the limits on the powers of government?

The other recent expression of Mutua’s views was in a different forum and took a very different turn. His target was public participation (PP).

PP on law making

He wrote on X: “In a democracy, public participation is a charade often used by courts to strike out government policies they don’t like, or oppose a President they loathe. … It’s a fiction of democracy. That’s because public participation is so theoretically and empirically vacuous that it doesn’t tell you whether a particular policy is objectively good for a country. It only serves as a fig leaf for legitimacy by elites to justify what they want to do. At best, it may educate portions of the population, but since it’s not a plebiscite or even a scientific poll, it can’t be used as a measure of democratic legitimacy.”

Prof Kivutha Kibwana gently reminded him (also on X) of about 14 Articles that require public participation – in that constitution that is supposed to be taught to children. Indeed schooling might actually help prepare the young to participate in public decision making in the future.

Public participation was a key aspect of the deliberations on a new constitution. The Constitution of Kenya Review Commission (CKRC) says in its final report, “While participation may not be the panacea to all evils of governance, it is looked upon as providing a way of making government more accountable, of making it more effective and responsive to the public needs – and of making it more just.

Accountability and effectives should mean less waste of resources and more intelligent prioritisation of government action. More effective and accountable government should mean more satisfied citizens and ultimately greater social stability – or at least stability that stems from commitment rather than from sullen submission.”

I would also argue that the knowledge that there will be PP should make the drafters of laws and policies more thoughtful, and prompt them to produce documents that explain the proposals clearly for citizens. Even informing the citizens clearly about government proposals is a democratic advance. 

Actual input from citizens should help to improve the ideas. It’s not a matter of majority opinions, but of useful input. It would also be relevant to understand the strength of public opinion on certain issues – like taxation. A good system of PP should include feedback on why ideas were or were not accepted – which would also help citizens to accept or at least understand the decisions made.

Are the judges as irresponsible as Mutua suggests? It would be naive to deny that a judge’s perception of whether PP had been adequate might be influenced by their view of the value of the law. But it’s more complex than that. Judges are used to making decisions about whether some procedure has been adequate. They may have to decide whether someone has been negligent – have they behaved according to a reasonable standard? They sometimes have accepted ideas of appropriate behaviour, and previous court decisions, to help, but ultimately it is their decision on the facts of the particular case. It’s part of the job of being a judge. Judges know they are not the policy makers.

Judges have made it clear that PP is not a matter of majority view. It is whether there has been enough opportunity for views, majority or not, to be expressed.

Take the Contempt of Court Act. Judges had no reason, I believe, to think it was a bad Act. It even preserved an outdated offence of scandalising the court. But they held it was unconstitutional for lack of PP.  

If the content of an Act is of questionable constitutionality that should be challenged. If it was also passed without proper PP that should be raised, too – in case the first argument fails. It is unfortunate if an Act that contradicts the constitution is held unconstitutional only because of lack of PP – leaving it open to Parliament to re-enact it. Remarkably MPs often do not re-enact a Bill – with proper participation – as with the Contempt of Court Act.

The actual provision in our constitution about law making is very similar to that in the South African Constitution. But many countries now have some degree of public participation in public decision making. More direct possibility of public participation in making law and other important decisions is not some eccentric step by the Kenyan constitution makers.  

It’s not easy. Even the CKRC pointed out the challenges:  elite hijacking, understanding local dynamics for a PP exercise, manipulation by authorities, like holding meetings when certain groups cannot come, effectively involving women, local community dynamics and rigidities, and importing ideas from outside the community – or even the country – that may not be appropriate.

There are other risks, including public apathy. It is also not cheap.

Much work needs to be done, but we can do it. Prof Kibwana, as Governor of Makueni, set up an effective system of PP that has been much praised.

One hopes that there is no connection between Mutua’s views on participation and his recent Road-to-Damascus-like conversion to the broad-based government. In other words, that this is not some shot across the bows of the courts and the people from the government.

A final thought. PP is even more important in Kenya than in some countries. The way many exercise their votes – voting for “their thief” rather than someone else’s, or following the directives of their kingpin – is one problem.

The apparent reluctance of the younger potential voters to register is another. Perhaps they cannot see anyone they might want to vote for.

Then, once elected, do MPs feel they are there to understand their constituents’ views, and represent them, and the national interest? Or are they there for their own benefit, supporting government even if elected as opposition, or even taking bribes to vote a certain way? How competent are MPs to pass laws?

At least PP allows members of the electorate to put forward their own reactions, even if their MP is unable or uninterested in doing so.

PP can perhaps help to compensate for the democratic shortcomings of our political system. 

This article was first published by The Star Newspaper https://www.the-star.co.ke/siasa/2025-12-20-ghai-presidents-constitutional-adviser-has-some-good-ideas-and-some-not-so-good

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