Public interest litigation in supporting public input
Public participation is about the people being able to influence outcomes. It is based on the fact that governments derive their power from the people, and without the will of the people government becomes illegitimate. In addition to direct public participation, other ways people participate in their governance include through voting during general and by-elections; recalling their elected representatives; indirectly by passing their ideas through their representatives and directly through referendums. Direct public participation in law and policy making ensures that government activities address people’s problems and protect their rights including those of marginalized groups. The constitution has many provisions that require direct public input in making decisions. It is very clear about the need for participation in the work of Parliament and county assemblies, in environmental management, in decisions about finance, and particularly stresses that devolution is supposed to make participation stronger. The insistence on direct public involvement rejects the idea that it is enough for the people to elect their representatives every five years, and then leave the job of governing to them. Not all elected representatives are happy about this.
People have been asking how far public participation really influences decisions made by public authorities. This has particularly been so after the January 2017 Senate debate on the Bill to amend the election law, which had been presented to the public for their input but whose views do not seem to have influenced the final decision much, if at all. For example, there is wide acceptance that public views did not influence the Senators’ first position on that Bill (even though the Senate made a big thing of getting public input). So we have the paradox that participation is a constitutional requirement yet it is either not sought or does not make much difference. The Senate example is among those that show that there is still a challenge in attaining meaningful public participation in governance. As a result, several public interest litigation (PIL) cases have been brought before the Kenyan courts to address the challenges. The areas of concern have included whether people’s views must be considered in the final decision, the point at which people’s input is required, whose views exactly must be considered, and what “considered” means.
When people’s views should be considered
The courts have spoken on this matter in several PIL cases. Justice Odunga declared the Kiambu County Finance Act 2013 illegal because of lack of public participation (the case is called Gakuru v Governor of Kiambu). An important point was that an earlier Finance Bill had been rejected in the County Assembly, and the county government thought it did not need fresh public input on the revised Bill. Justice Odunga said that approach was completely wrong (and it would make it possible to avoid public participation altogether). Decisions of all sorts need public input: One Kenyan case held that it should have been sought for renaming a local post office.
What is adequate participation?
Justice Odunga relied among other cases on South Africa’s Doctors for Life case where Justice Yacoob ruled that citizens require effective opportunity to participate. Judges speak of the need for “reasonable” possibilities of participation, and “What amounts to a reasonable opportunity will depend on the circumstances of each case”—to quote the South African Judge Albie Sachs, as many Kenyan judges have done. Public authorities have a good deal of discretion on how to organise public participation, though little about whether to do so.
In a case brought by The Institute for Social Accountability, Katiba Institute advocates argued that an Act amending the CDF Act was unconstitutional for failure to genuinely consider public views. However, Justices Lenaola, Mumbi Ngugi and Majanja accepted the argument of Parliament that the change was about something on which public views were well known because of earlier public participation on the Act being amended.
The judges look at the whole process to decide whether the opportunity for public participation has been sufficient. In a case brought by The Law Society of Kenya, Justice Majanja observed that the entire process leading to the enactment of the legislation should be looked at to decide whether there has been sufficient public participation and on that basis ruled that the petitioner had failed to show how the National Assembly had failed to achieve public participation. The problem with the judge’s argument is that even if an issue had received public input, different contexts can result in different views by the public.
What efforts must be undertaken to ensure participation?
Justice Odunga in Gakuru said that as many methods as possible should be used to disseminate information about the intended action, and quoted from the Doctors for Life case about how participation is more relevant to the relatively disempowered. He then ruled that there was inadequate public participation when only a few people participated for one day at a 5 star hotel, and only a one day newspaper advertisement was published. He commented that the content of the advertisement did not attempt to “exhort the public to participate in the process”. He indicates that the number and kind (diversity) of people that participate does matter and that those in authority have a responsibility to motivate members of the public to participate.
Must views be accepted?
Justice Odunga quoted Justice Sachs who commented that public views do not necessarily bind the legislature if they are in direct conflict with policies of the government, but that even then government must keep an open mind and be willing to consider all views. In fact, government policy should not be set without considering public opinion either.
Obviously public views may differ, and not all can be accepted. For example, decisions must not go against the constitution, even if public input supports them. And the public may be divided on some issues. But Justice Odunga also approved of observations from the South African courts that there ought to be explanation to the public if there is a departure from what the public expected.
The court have also been clear that it may not be possible for everyone who wishes to be heard, and particularly there is no guarantee of being heard in an oral hearing. It all comes back to what is reasonable.
The contribution of the courts
It’s important to understand that a particular court decision has importance beyond that one dispute. Gradually our courts are filling in the picture of what public participation really means in law. Most of the standards set by the courts through PIL have the potential to improve the participation of members of the public in decision making in Kenya. The requirement for authorities to be open minded, use many methods, positively encourage participation from all kinds of people, consider the less powerful in the society, and to always explain how the public views affected the final decision are particularly crucial. Sometimes it seems the courts could be more helpful—as in the recent case when Justice Onguto said that new forms about land title were invalid because of lack of participation, but said nothing about what participation should be undertaken.
The courts have also explained why participation is important in language that is sometimes both clear and striking. Notable examples are Justice Odunga in the Gakuru case, and the former Chief Justice in the National Land Commission and Ministry of Land case. We can end with a ringing statement from Chief Justice Mutunga: “Public participation is, therefore, a major pillar, and bedrock of our democracy and good governance. It is the basis for changing the content of the State, envisioned by the Constitution, so that the citizens have a major voice and impact on the equitable distribution of political power and resources.”
Ben Nyabira is a programme officer with Katiba Institute.