- INTRODUCTION
Public Participation is central to all aspects of governance, and most crucially during the legislative process.
Article 1 of the Constitution of Kenya vests all sovereign power in the people of Kenya to be exercised directly or indirectly, through democratically elected representatives. Article 10 of the Constitution elevates public participation as one of the national values and principles of governance that must be observed by all persons, state organs and public officers in the application and interpretation of the Constitution, the enactment, application or interpretation of any law and the making or implementing of public policy decisions.
Additionally, Article 118(1) of the Constitution obligates Parliament to conduct its business in an open manner and facilitate public participation and involvement in the legislative and other business of Parliament and its committees.
The court have emphasized that the national values codified under Article 10 (2) of the Constitution are justiciable and enforceable immediately. The values are not directive principles and must be applied during the legislative process.
Courts have held that public participation must include and be seen to include: the dissemination of information, invitation to participate in the process and consultation on the legislation. The Supreme Court in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others [2019] KESC 15 (KLR), enunciated that:
- Public participation is a founding value in our Constitution;
- It must be real and effective, not illusory and ought not to be treated as a mere formality.
- Public participation must be purposive and meaningful.
- Authorities must not only give the public reasonable notice and reasonable opportunity to present their views but
- The Authority must also demonstrate consideration of those views when making legislative or public policy decisions.
Indeed, many Acts and policies duly enacted by the relevant bodies have been declared unconstitutional for lack of adequate public participation. This persistent non-compliance is undeniably one of the key reasons behind the introduction of the Public Participation Bill.
- ANALYSIS OF THE PUBLIC PARTICIPATION BILL, 2025
The Public Participation Bill No. 44 of 2025 (hereinafter referred to as “the Bill”) has been tabled before the National Assembly. Its principal object is to provide a framework for effective public participation.
Part II of the Bill designates the responsible authorities responsible for public participation in the various institutions. Some of the proposed responsible authorities include: for Parliament, the Clerk of the relevant house, for the Judiciary, the Chief Registrar of the Judiciary, in the case of a State Department, the relevant Principal Secretary, for a state corporation, the Chief Executive Officer, for the county assembly, the Clerk of the county assembly and for a county executive, the county Governor.
This approach of designating a responsible authority appears to be strategically sound as it improves accountability of public institutions and state organs in conducting public participation.
Part III of the Act provides the considerations in undertaking public participation. A responsible authority is required to consider among others:
- The nature of the matter under consideration;
- The urgency of the matter under consideration;
- The impact of the matter on the public;
- The need for inclusive and effective representation;
- The number of persons likely to be affected;
- The ability of the members of the public to access the necessary information and the public participation forum;
- The integrity and transparency of the process; and
- The financial and human resources available.
Section 8 of the Bill obligates a responsible authority to notify the public of the venue, date, time and mode of the public participation exercise through electronic media (including television, radio or internet) , official website and social media platforms, public meetings, public notice boards or print media.
Each notice must state:
- What the public is being invited to give comments to;
- How long the public participation exercise will be conducted
- The mode of receiving submissions which according to the Bill may include: memoranda or letters, oral submissions, through online platforms, at public hearing, workshops, seminars and conferences.
Further, a responsible authority must also ensure that the public has access to the public participation process and allow reasonable time for the public to make submissions. They are then required to analyze and take into account the submissions received from the public and publish the outcome of the public participation exercise.
The Bill offers a general framework for public participation, it essentially codifies the directives issued by the courts. It however leaves the specific guidelines to be determined by each responsible authority. Part IV mandates a responsible authority to develop specific guidelines for the conduct of public participation by the respective institution.
- HISTORY OF PUBLIC PARTICIPATION BILLS
The Public Participation Bill, 2025 is not the first of its kind to be tabled before Parliament.
The Public Participation Bill, 2016 was tabled before the National Assembly as an Act of Parliament intended to give effect to the Constitutional provisions regarding public participation. This proposal did not become law and instead another attempt was made in 2019 when the Public Participation Bill, 2019 was tabled before the National Assembly. The 2019 Bill, among others, provided that a state organ was to appoint a secretary for every public participation forum for the purposes of recording the proceedings, publicizing them and giving feedback to the public on the action taken for each of the issues. However, the 2019 bill did not become law and the process stalled.
- CONCLUSION
The Public Participation Bill, 2025 marks another attempt by Parliament to enact a law to bring clarity around one of Kenya’s most litigated constitutional values. The Bill, together with the jurisprudence developed by the court will, hopefully, provide better guidance to legislators and other state organs to conduct effective public participation.
As with all the Bills before it, the Public Participation Bill is at the crucial stage of public participation. Members of the Public are encouraged to submit their views through letters or memorandum and/or attend the public hearings and barazas.
Article by Annie Brenda Ndambuki.
Disclaimer: This Article is intended for general information purposes only and does not constitute legal advice. While every effort has been made to ensure the accuracy of the information contained herein, the law is constantly evolving and judicial interpretations may vary. Readers are strongly advised to seek independent legal counsel for advice specific to their circumstances.
