Court decisions on public participation have been varied. In some cases, courts have quashed laws and regulations for want of public participation, in others they have upheld legislative action, holding that public participation was sound. These decisions have provided guidance on the requirements for conducting public participation exercises, however, given the varied cases and conflicting decisions, the threshold of effective public participation remains unclear.

To address the challenge of public participation in Kenya, the Public Participation Bill, 2024 (Bill) has been developed pursuant to a request by the National Assembly to the Attorney General and the Department for Justice for the development of a legislative framework that provides clarity on the conduct of public participation in the country.

Application

The Bill applies to all “responsible authorities”, defined to include any department or agency of the national government; an authority, body or other entity declared to be a national government entity under section 4(1) of the Public Finance Management Act; and Constitutional Commissions and Independent Offices when they formulate or review public policy, formulate a legislative proposal, formulate a statutory instrument, or initiate a government programme or project. While Parliament and county assemblies are not included in the definition of responsible authorities, the Bill requires them to incorporate guidelines for undertaking public participation in the Standing Orders and ensure that the Standing Orders are accessible to the public.

Governance and institutional framework

The Bill establishes the Office of the Registrar of Public Participation (Registrar) as a public service role, to be filled through a competitive process and appointed by the Cabinet Secretary responsible for matters relating to public participation (Cabinet Secretary).

The Registrar will be responsible for reviewing and approving public participation plans from responsible authorities, keeping a registry of these plans and participation reports, and developing a framework for monitoring, evaluation, assessment and learning related to public participation. The Registrar will also report to the Cabinet Secretary on the state of public participation, maintain an online platform for participation reports, advise authorities on compliance, and conduct capacity-building activities.

The Bill mandates the Cabinet Secretary to not only appoint the Registrar but also provide the general policy direction on public participation and publish an annual report on the status of public participation. The Cabinet Secretary, in consultation with the Registrar, also has the power to make Regulations to better carry out of the provisions of the Bill once it is an Act.

Conduct of public participation

The Bill stipulates the key considerations to be adhered to by responsible authorities when undertaking public participation. These include the: nature of the matter, urgency of the matter, impact of the matter on the public, need for inclusive and effective representation, number of persons likely to be affected, ability of the members of the public to access the necessary information and the public participation forum, and integrity and transparency of the process. A responsible authority is also required to develop specific guidelines for undertaking public participation that adhere to the standards set out in the Bill and publish them in the Gazette and carry out public participation in the following steps:

1. Preparation of public participation plans

The accounting officer of an authority planning a public participation exercise must submit a public participation plan to the Registrar. For legislative proposals, statutory instruments, policies, programmes or projects, this plan must include: a copy and summary of the proposal, an analysis of stakeholders likely to be impacted, evidence of funding, and a public notice. The notice, as outlined in the schedule, should state the proposal’s objectives, explain how the authority will gather input from interested parties, provide a minimum 21-day period for public comments, and detail where and how the public can access the proposal.

2. Publication of proposals and notices and, receipt of public views

The accounting officer must make each proposal and its summary publicly accessible; publish the notice in a national newspaper, on the authority’s website and in other electronic and print media; and provide a way for public submissions and ensure media and venue accessibility for people with disabilities. A responsible authority is required to consider and analyse responses received from the public and to make the reasons for the final decision available to the public.

3. Submission of public participation reports

The accounting officer of the authority responsible must prepare and submit a public participation report to the Registrar within seven days of completing the exercise. The report should detail those affected or interested by the proposal; list attendees from any public meetings; describe how public submissions were gathered; outline the submission period; explain how socioeconomic, religious, ethnic and knowledge factors were considered; describe how inclusivity was ensured, including understanding of and access to the public participation exercise by people with disabilities; and explain how public submissions were considered.

4. Issuance of a certificate of compliance

The Registrar will issue a certificate of compliance once they are satisfied that the public participation exercise was conducted in accordance with the Bill.

Rights of a member of public or stakeholder

Pursuant to the Bill, anyone interested in or affected by a proposal and attending a relevant public meeting has the right to submit feedback, either orally or in writing, to the authority responsible, and to be given sufficient time to present their views without facing interruption, intimidation, pressure, or undue influence from any officer or attendee.

Anyone interested in or affected by a proposal who elects to attend a public meeting and believes that their rights have been violated by an officer or any other person during the proposal’s consideration may file a written or oral complaint with the Registrar. The Bill emphasises that complaints must be made in either English or Kiswahili, be respectfully worded, indicate whether the matter is before the courts and include the complainant’s name, address, ID number, and either a signature or thumbprint.

Once a complaint is received, the Registrar is to review it within seven days to ensure it complies with the legal requirements. If not, the Registrar may provide instructions for amendments. Once deemed compliant and within the Registrar’s mandate, the Registrar will co-ordinate with the responsible authority to address the issues raised. The complainant will receive a written decision, and a public register of all complaints, documents and decisions will be maintained and accessible during regular office hours.

Offences and penalties

Any person who, in conducting public participation, fails to adhere to the principles and obligations set out under the Bill commits an offence and shall be liable upon conviction, in the case of a natural person, to a fine not exceeding three hundred thousand shillings, and in the case of a juristic person, to a fine not exceeding five hundred thousand shillings.

Where a determination is arrived at that an accounting officer has contravened the Bill, the Registrar may recommend the initiation of disciplinary proceedings against that accounting officer, including surcharge where public funds have been wasted.

Transitional provisions

A public participation exercise in progress at the commencement of the Bill will proceed so far as possible in accordance with the Bill’s provisions.

Conclusion

The Bill seeks to bridge the legislative gap that has historically limited effective citizen engagement in Kenya’s governance. By establishing structured guidelines on the conduct of public participation, it aims to create more oversight and clearer criteria for inclusive engagement, accountability and transparency.

The Bill is open for public comments, and we propose that it be amended to provide more clarity on who will be the envisaged Cabinet Secretary responsible for matters related to public participation in Kenya, as public participation is a cross-cutting issue across all ministries in Kenya and it is unclear which Cabinet Secretary is being referred to in the Bill.

Further, the Bill intends for compliance to be demonstrated through the holding of a certificate issued by the Registrar, once a responsible authority has successfully completed the public participation exercise. It is not clear what recourse is offered to responsible authorities that are not issued with a certificate of compliance by the Registrar when they are deemed non-compliant. It will be necessary for the Bill to require the Registrar to provide reasons for the rejection of a public participation report, and as such a holding of non-compliance. Responsible authorities would benefit from an opportunity to appeal the Registrar’s decision and clarity on whether they should redo the entire public participation exercise or components of it.

The penalty for non-compliance with the Bill’s requirements on public participation is a monetary fine, while disciplinary proceedings are mandated for a responsible authority’s accounting officer who is found to be in breach of the Bill. There is, however, no provision on the effect of non-compliance on the legal status of a policy, legislation, statutory instrument or government programme or project.

Additionally, the dispute resolution process under the Bill needs to be reformulated to capture all forms of public participation. As currently worded, it only provides recourse to persons who have attended a public meeting as part of a public participation exercise. There is also need for a grievance redress mechanism that allows the possibility of anonymous complaints to the Registrar. This may be a preferred option for some members of the public and it is essential to encourage the freedom to seek information and express ideas.

Lastly, the Bill requires that complaints be submitted in respectful, decorous and temperate language. These stipulations on use of language could be misused to stifle participation, and the Bill should be reframed to abide only by the constitutional limitations on freedom of expression. These are set out in Article 33 of the Constitution which limits freedom of expression by mandating that this right does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred, and in exercising public participation, individuals must respect the rights and reputations of others.

For any questions or inquiries, please send an email to clarice.wambua@cdhlegal.com