In Kenya, Is Public Participation in Governance Purely Cosmetic? Commentary
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In Kenya, Is Public Participation in Governance Purely Cosmetic?
Edited by: JURIST Staff

In June 2023, Kenyan High Court Judge Mugure Thande issued conservatory orders temporarily halting the implementation of the controversial 2023 2023 Finance Act. These orders were later upheld by Justice Thande in July, and the case was referred to Chief Justice,  Martha Koome, to empanel a bench for further proceedings. Subsequently, a 3-judge bench, led by David Majanja, was appointed to hear petitions challenging the Act, setting a hearing date for August 7 August 2023. However, on 28 July 2023, the Court of Appeal lifted the suspension, following an application by Treasury Cabinet Secretary Njuguna Ndung’u, citing financial losses. Consequently, the government backdated the tax remittance, leading to concerns from the Law Society of Kenya and human rights groups. Despite their challenges, the 3-judge bench dismissed preliminary applications during the August hearing and scheduled a full case hearing for September 13-14, 2023.

Amid these developments, Senator Okiya Omtatah and others appealed the lifting of the suspension to the Supreme Court, with Lady Justice Njoki Ndung’u on 8 August 2023 certifying the appeal as urgent and emphasizing its serious constitutional implications. The appeal seeks to overturn the Court of Appeal’s decision and potentially suspend the new tax law’s implementation. However, on 8 September 2023, the Supreme Court dismissed the appeal.

As Kenyans wait with baited breadth or with a deflated sense of hope depending on where you belong on the financial totem pole for the outcome of the hearing by the High Court of the petitions challenging the Finance Act, 2023 which is set for 13-14 September 2023, it is clear that there are a number of legal issues which the courts will have to determine. One of those is questions around the adequacy of public participation which has appeared on a number of the petitions challenging the Act, and the hope is that the High Court will hopefully provide some much-needed direction. This is needed because as it stands although public participation is protected under the Constitution, there is no substantive law that provides for how public participation should be carried out in Kenya.

Public participation is a decision-making process that requires the inclusion of those who are affected by a decision. Citizens’ participation in government decision-making is fundamental to the functioning of a democratic system of governance.  Indeed, democracy is premised on the idea that all citizens are equally entitled to have a say in decisions affecting their lives. However, it is more than simply informing people about what Parliament is doing or even delegating decisions to the public, or even conveying decisions already made, but is a process that facilitates the generation and confirmation of decisions. This involves consulting with persons, groups, and entities before decisions are made. It is designed to give a voice to the voiceless.

Hence, when it comes to creating law, it demands that Kenyans are involved in the legislative process that affects them as a nation. Public participation in the legislative activities of Parliament in Kenya is a fundamental constitutional principle. It is enshrined in Articles 1,10(2) a, 35, 118, 119, 124, 194, 201, 221, 232, and the Fourth Schedule Part 2 (14). 232,  of the Constitution of Kenya, the Petitions to Parliament (Procedure) Act, No. 22 of 2012. Sections 87 to 92 and 115 of the County Governments Act, 2012 outline the principles of public participation and emphasize the importance of facilitating public participation in the work of the County government. Further Article 35 of the Constitution as well as the Access to Information Act, No. 31 of 2016 guarantee every citizen the right to access information held by the State, which is key in enabling public participation. As a result, members of the public are invited to submit written memoranda on various facets of parliamentary business, and parliament proceedings are open to the public through live streaming on channels such as YouTube.

Notably, article 118, of the Constitution, 2010 binds Parliament to engage members of the public in its business. It requires Parliament to ‘facilitate public participation and involvement in the legislative and other business of Parliament and its committees.’ Hence, it is not too farfetched and is reasonable to conclude that public participation is not just a key element in the legislative functions of the government at all levels, but in all other government business.

Further, although as has already been highlighted there is no substantive law that provides for how public participation should be carried out, case law has helped to bridge the gaps.   The essence of public participation has been developed in numerous cases that have made determinations on the matter.  To begin with, the Supreme Court in British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health and Others [2019] eKLR, laid down the principles that should guide public participation. However, the Supreme Court in the case laid down a guiding principle that helped to bring about some much-needed clarity. It emphasized that public participation must be real and not illusory; it is not a cosmetic or a public relations act. That public participation is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. Further, emphasizes that a lack of public involvement in amendments can lead to a lack of public trust and involvement in law-making.

On 13-14 September 2023, when the High Court will sit to hear the petitions against the 2023 Finance Act, one of the issues of contention will be the constitutionality of amendments that according to petitioners were included in the Finance Bill (2023) and passed into law before being subjected to public participation. Importantly, public participation did take place in May 2023, and as a result, the relevant Committee made some amendments before the second and third reading that were in line with the recommendations, but according to the petitioners they also included new amendments that were never subjected to public participation. Consequently, one of the legal questions that the High Court will be delving into is:  whether the Committee had the legal authority to introduce new amendments to the Finance Bill, 2023 that were not subjected to public participation.

Notably, under Kenyan law, a Bill is a proposed law for introduction in a House of Parliament. Bills seek to introduce new legislation, amend existing legislation, or repeal existing law(s). The Bill then goes for a first, second, and third reading before the legislature. The first reading is purely a formal undertaking to introduce the Bill to the legislature. Here no debate arises and no vote is taken at this stage. The Bill is then introduced to the public for public participation purposes in line with Art 118 of the Constitution. After, the Committee submits a report to the House that may contain proposed amendments to the Bill as a result of public participation. The Bill then goes through the second and third readings where debate and voting take place, and if it is passed by parliament, the president agrees to it. The head of the executive arm of government completes the legislative process by formally assenting or giving his consent to an Act of Parliament.

Interestingly enough, this year the High Court of Kenya has had the opportunity to decide three cases that touch on public participation that could help provide some guidance on the approach that the court will take. The first is the case of Mwaura Kabata & Others vs. National Assembly & Others in which the High Court determined that the additions brought into the Finance Act 2022 were lawfully done so and formed part of the laws of Kenya. The Petitioners had challenged several provisions introduced in the Finance Act, 2022 for a number of legal reasons including adequate public participation. The Petitioners contended that the introduction of the impugned section 30 (b) of the Finance Act, 2022 was not subjected to public participation, and hence was a clear violation of the Constitution. The petitioners claimed that because of the far-reaching consequences of the impugned amendments, the proposed amendments ought to have been resubmitted to the public for their views since they were not contained in the Finance Bill, 2022 before enactment. The High Court dismissed the petition. It was guided by Standing Order 132(b) which informs that the sequence of the Bill presented in the Second Reading may include new Clauses. Holding that that the Standing Order 133(5)and(6) distinguishes these new amendments from those that would change the subject matter of the Bill by introducing a different topic expanding its subject or that is inconsistent with any part of the Bill already agreed to. According to the Court, new amendments can be introduced to a Bill under consideration after the First reading so long as the amendment is in line with the “original intent” of the purposes and objects of the Bill, and in the court’s view the whole purpose and intent of the Finance Bill were  “amendment tax laws”, and that all the cited impugned amendments fell within the scope of this bracket according to the court. The court held that the amendments could not be deemed to have been new introductions contrary to the purposes and objects of the Bill and that the amendments adhered to the legislative process as outlined in the National Assembly’s Standing Orders and did not fall in the restricted amendments cited under Standing Order 132(5) and (6). In addition, the impugned amendments did not violate the principle of public participation and were accordingly constitutional.

Importantly, according to case law identifying the intent of the Bill requires looking at the memorandum and objects of a Bill. In this case, the intent of the Bill was the amendment of tax laws according to the court, and the parameters set out were the specific sections that were listed by the Bill.  In my view the court’s interpretation of the intent of the law was too broad, and as such failed to take into consideration the nuanced nature of taxes in general. It failed to take note that when talking about making an amendment to finance law an amendment can mean many things. For example, it can mean increasing, varying, reducing, removing, or introducing new taxes. Further, whether you’re varying, adding, reducing, or introducing new taxes there is the issue of determining the rate of percentage; is it by one percent, a doubling or tripling of the current percentage, or some other means of increasing the percentage? If this approach by the court is to be taken then it means that if public participation is held to increase the value-added taxes of commodity X from 8 percent to 16 percent, and the process is completed, and after the relevant parliamentary committee decides to change the percentage of the value added tax for commodity X to 46 percent, that this new amendment will be held as valid despite not being put through public participation. Yet the legal consequence as a result of a percentage change will be substantial. When a provision of law is interpreted too broadly it fails to take into account the nuances and complexities of the specific case. This can undermine the legislative intent of the said law, which this ruling seems to do. It gives Parliamentary Committees appointed for the legislative process too much of a wide berth within which to operate without accountability from the people (stakeholders) through public participation when it comes to the legislative process, and as a result, could render public participation almost irrelevant or simply cosmetic.  The introduction of new amendments after the public participation process defeats the purpose of public participation and infringes on the rights of those who engage in public participation on a law that will impact their lives directly. This ruling risks making the constitutionally protected right to public participation toothless in effect.

However, the High Court took a different approach in the case of Matindi v CS, National Treasury & Planning & 4 others. Here, the petitioner challenged the constitutionality of Legal Notice No 15 of 2021 and Legal Notice No 27 of 2021 on the grounds that the legal notices gave Japanese employees, consultants, and companies involved in the projects financed by a loan by Japan income tax waivers amongst other reasons. The court held that the importance of public participation could not be waived and that Parliament waived the right to public participation in publishing legal notices because the legal notices were not statutory instruments. Additionally, stating that public participation was not limited to statutory instruments, and was instead related to all legislation and even decisions on the hiring of constitutional officeholders. That Parliament had no power to exclude public participation in legislation and other business. Also, it states that Parliament should be geared more towards public participation and not less of it. Hence, Legal Notice No. 15 of 2021 was a statutory instrument and the law required it to go through public participation, and the National Assembly breached the Constitution by failing to carry out public participation. The court went on to emphasise that the “more technical and wider the effects, the more the need to engage in public participation”.  The court, further, held that the decision by parliament to waive public participation was null and void ab initio.

Notably, it can be argued that enforcing public participation in the context of a tax waiver for an inter-country agreement is an extreme position, however, it is a position that the Constitution seems to agree on. The Constitution in Article 118 is very specific when it obligates the government to facilitate public participation and involvement not just in the legislative process, but in all other business of the National Assembly and its committees.

Additionally, Matindi & 3 others v President of the Republic of  Kenya & 4 others, the latest case decided on 3 July 2023 takes a  similar approach that emphasizes the importance of public participation in the legislative process. The case challenged the constitutionality and process of establishing the office of the Chief Administrative Secretary (the office of the CAS). The petitioners challenged the President’s unilaterally decision to create an additional 27 positions of CASs beyond the 23 that were created on the recommendation of the Public Service Commission (PSC). Amongst the legal issues before the court was adequate public participation. The petitioners argued that the creation of the office of the CAS did not adhere to the principle of public participation for the additional  27 posts. Although with the initial 23 CAS positions, there was a public notice and a call for public participation in September and October 2022, no similar procedure was held when the number of CAS positions was expanded from 23 to 50 in 2023. The Court found that there was a substantive difference between the creation of a CAS office in each ministry (the original proposal) and in each State department (the proposal for an expanded number of CAS positions). The court held that the sequence and procedure that led to the establishment of the 27 additional posts did not adhere to the constitutional principle under Articles 10 and 232 of the Constitution and conditions set out under Section 27 of the PSA Act.  Further, the public only submitted comments in the public participation exercise based on the creation of the CAS office in each Ministry, not each State Department as indicated in the President’s letter dated February 23, 2023, and not for the additional 27 nominees. Additionally, the court emphasized that public participation must be “real” and “cover all forms of governance”, and hence the lack of public participation for the additional 27 CAS positions was “fatal even when it is for something such as the expansion of an original proposal”.  That the State could perform the exercise on one occasion, and then assume carte blanche to deal with the subject matter as it sees fit, and further, if it makes changes, the process must be repeated. Subsequently, it held that the process of establishing the extra 27 posts was unconstitutional.

Several legal conclusions can be drawn from these cases above. To begin with, they highlight the critical role of public participation in the legislative process, especially when it comes to amendments and new provisions. While there might not be a specific law outlining the procedure for public participation, the judiciary has relied on case law to establish guiding principles. In the British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health and Others [2019] eKLR, the Supreme Court emphasized that public participation must be genuine and substantial, not a mere formality. It highlighted that lack of public involvement in amendments can undermine public trust and involvement in law-making. This principle is relevant when analyzing amendments made to the 2023 Finance Act. The High Court’s interpretation in the Mwaura Kabata & Others vs. National Assembly & Others case raised concerns about the scope of amendments that can be introduced after public participation. While the court’s view that amendments must align with the original intent of the Bill holds merit, the overly broad interpretation could overlook the nuances of different amendments. This approach could risk making public participation somewhat cosmetic if amendments substantially alter the impact of the law. Conversely, the Matindi v CS, National Treasury & Planning & 4 others case underscored that even seemingly technical matters, such as tax waivers, require public participation. The Constitution’s emphasis on facilitating public involvement in all aspects of the National Assembly’s business reinforces the significance of public participation, even beyond the legislative process. Similarly, the Matindi & 3 others v President of the Republic of  Kenya & 4 others case highlighted that the expansion of public participation must accompany any substantial changes in the law, and ignoring this process renders subsequent actions unconstitutional.

Further, looking at the approaches taken by the courts in Mwaura Kabata & Others vs National Assembly & Others, Matindi & 3 others v President of the Republic of  Kenya & 4 others, and also other previous cases decided in 2022, it is evident that there exists some ambiguity when it comes to determining the validity of new amendments introduced during the second reading after public participation has already taken place. As a result, in the determination of this matter, the High Court on 13-14 September 2023 may have to provide more in-depth guidance on what the “original intent” of a Bill is as required by  Standing Order 133(5)and(6). This is because although case laws seem to suggest that this determination should be made by looking at the memorandum and objects of a Bill, this approach without any parameters may be too broad especially with regard to a Finance Bill, as has been highlighted. As a result, the petitions against the 2023 Finance Act, provide the High Court with a pivotal opportunity to progress the development of jurisprudence on public participation in Kenya by bringing clarity on the determination of “original intent” through its interpretations and solutions. It will be interesting to see what position the High Court will take.

Dr. Shirley A. Genga is a lecturer at the Jomo Kenyatta University of Agriculture and Technology, human rights researcher, and occasional features contributor for the Standard Newspaper.


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