Threshold for Public Participation - County Governments

Public participation forms part of the core values and principles of governance under the Constitution of Kenya, 2010. Section 87 of the County Governments Act, Cap 265 Laws of Kenya provides for principles of citizen participation in counties. Further, Section 115 provides that public participation in the county planning processes shall be mandatory and facilitated through provision to the public of clear and unambiguous information on any matter under consideration in the planning process.

What is public participation?

According to their plain and ordinary meaning, the words public involvement or public participation refers to the process by which the public participates in something. It is impossible to define the forms of facilitating appropriate degree of public participation, but as long as members of the public are accorded a reasonable opportunity to know about the issues at hand and make their contribution say on such issues, then it is possible to say that there is public participation.

Principles of citizen participation in counties

Section 87 of the County Governments Act provides that citizen participation in counties shall be based upon the following principles: -

a. timely access to information, data, documents and other information relevant or related to policy formulation and implementation;

b. reasonable access to the process of formulating and implementing policies, laws and regulations, including the approval of development proposals, projects and budgets, the granting of permits and establishment of specific performance standards;

c. protection and promotion of the interests and rights of minorities, marginalized groups and communities and their access to relevant information;

d. legal standing to interested or affected persons, organizations and where pertinent, communities, to appeal from or review decisions, or redress grievances, with particular emphasis on persons and traditionally marginalized communities, including women, the youth, and disadvantaged communities;

e. reasonable balance in the roles and obligations of county governments and non-state actors in decision making processes to promote shared responsibility and partnership and to provide complementary authority and oversight;

f. promotion of public private partnerships, such as joint committees, technical teams and citizen commissions, to encourage direct dialogue and concerted action on sustainable development; and

g. recognition and promotion of the reciprocal roles of non-state actors’ participation and governmental facilitation and oversight.

Judicial Interpretation on threshold for public participation.

Time and again, Courts have given interpretations on what constitutes public participation. In the case of Mugo & 14 Others vs. Matiang’i & Anor; Independent Electoral and Boundary Commission of Kenya & 19 Others (Interested Party) Constitutional Petition No. 4 of 2019, the court observed that for the principle of public participation to be met, the following parameters are required: -

i. there has to be evidence of inclusivity, that’s to say, all stakeholders or those affected by an administrative policy, or law have to be given an opportunity to express or ventilate their views well aware of what is at stake.

ii. the affected people have to be given sufficient notice of the nature of the decision to be made and when consultations will be held. The information has to be disseminated through public barazas, churches, mosques, print and electronic media and other avenues to ensure that the information reached the targeted audience.

iii. the government agency or a public officer in charge of the programme of public participation has to be of essence take into account public participation of the governed in quantitative as well as qualitative way i.e the engagement has to be meaningful and done in good faith rather than a mere formality.

iv. public participation calls for innovation and some level of malleability depending on the nature of subject matter for example culture, geographical issues, logistical constraints. The test to be applied is effectiveness and efficiency. The question to be asked is, was the mechanism effective in achieving sufficient public participation?

v. public participation does not mean that everyone has to give their views on the issue at hand as to attain such a standard at times could be impractical. A public participation exercise has to however show intentional inclusivity and diversity. A programme of public participation should not disregard bona fide major stakeholders otherwise the program would be ineffective and illegal. Those mostly affected by the policy are expected to have a bigger say in that policy, legislation or action and their views have to be sought, taken into account. The view of major stakeholders has to be captured through minutes or any other proof that shows that their views are captured and have a bearing in the final decision.

vi. public participation is not a public relations exercise. It has to be meaningful and done in good faith.

G.M Orina & Co. Advocates gives advisories to county governments on matters touching on public participation, drafts public participation laws and polices on behalf of County governments and offers representation in courts on matters relating to or incidental to public participation.

For more information and/or assistance in matters relating to public participation, contact us via info@gmorinaadvocates.com/gmorinaadvocates@gmail.com and/or +254786437754.