Kenya’s new constitution sets out new dynamics of power relations in the country’s governance landscape. Public participation is at the heart of this reconfiguration, which is meant to foster a participatory citizenry and the democratisation of all aspects of public life.

In the past, governance was the preserve of a few persons determining all governmental policies and legislative measures. These few individuals were elected as people’s representatives or were serving at the pleasure of those elected. Worse still, the people’s representatives did as they pleased once elected, hence the country’s high turnover of MPs in each electoral cycle.

The masses were hardly consulted on policies, programmes and legislative measures initiated in their name by those in the executive or parliament. Even when the government did ‘consult’ it was mere tokenism, a sham involvement of the people in invited spaces that were merely opened up by the state sector to non-state actors for cosmetic endorsement of predetermined government policies. Experience with the CDF (Constituency Development Fund) and the LATF (Local Authorities Trust Fund) has taught Kenyans that fiscal decentralisation is also meaningless if the rules of engagement are unilaterally made away from popular participation and accountability.

It is under such a backdrop that the new constitution provides not only for the recall of MPs but also public participation in public processes to ensure accountability.

The new constitution mandates not only representative democracy but also direct citizen participation as enshrined in (Article 1. (1) (2) (4)). Public participation is now anchored as a constitutional value and a principle of governance (Article 10. (2) (a), (b)). Full operation of these provisions will make a significant difference in the democratic development of Kenyan society.

Public authorities’ policy/rule-making power is now subject to inputs from citizens for the purposes of popular ownership and to ensure the outcomes thereof reflect the will of the people. The constitution provides for this through indirect and direct involvement of the people in policy-making (Article 232. (d)) and participation in the legislative business of the National Assembly, Senate and county assemblies (Articles 118 (1) (a) (b), 124. (1) (b), 124. (4) (c), 196. (1) (a) (b)).

Considering the foregoing, it is disturbing that we are implementing the new constitution under the old mould of doing things, by failing to engage the public in shaping the contents of constitution implementation bills. Parliament and other constitution implementation organs like the CIC (Commission for the Implementation of the Constitution) and the Kenya Law Reform Commission have failed to prioritise the enactment of a law to ensure public participation in all legislative and policy processes, as envisaged in the above constitutional provisions. This ought to have been a prerequisite to implementation of all other constitutional provisions.

Sure, they will say that such a law is not among laws listed by the fifth schedule of the constitution and that have to be passed within a year from the enactment of the constitution. They will also argue that Kenyans are free to send/give them their views and, moreover, that they have engaged ‘stakeholders’ in coming up with the bills they are now rushing to enact (after wasting much of the year).

But such contentions are hollow and misplaced at best. The fifith schedule is a priorities guide that only stipulates deadlines and does not preclude legislations from being passed prior to stated deadlines. Some laws by their sheer nature should be passed urgently, prior to their stipulated deadlines. For instance, the quick passage of new land laws would greatly contribute to the country’s stability as land is a key cause of violence in Kenya. Likewise, a law on public participation is rationally a necessary overarching prerequisite for Kenyans to enjoy a direct and structured way to inform the content of the laws being made.

With no such law, the implementation process has been left to the mercies and vagaries of the vested interests of line ministries’ bureaucrats and a few powerful and elite-interest groups that are the so-called ‘stakeholders’, whom the above constitutional implementation organs currently engage with in tokenistic ‘consultations’. The ‘Wanjiku’ at the grassroots, who was consulted and passed the new constitution, is sadly no longer in the picture.

Five legislations have already been enacted and more bills are pending enactment without adequate public participation contrary to the constitution. The result is that some of the generated bills and legislations are on close scrutiny and of suspect constitutional quality as they have provisions that subvert constitutional provisions. The bills on finances of county governments, elections and the return to the National Assembly of the Salaries and Remuneration Commission bill by the president are cases in point. This is an unjustifiable false start in constitution implementation.

The new constitution expects Kenyans to begin seeing themselves not only as sovereign citizens enjoying a broadened bill of rights but also – and more importantly – as free people shaping their destinies. Thus ‘Wanjiku’ should return and demand for the urgent enactment of a law that gives effect to public participation as constitutionally provided for and be the rightful driver of the constitution implementation process.

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* Katto K. Wambua is an advocate at the High Court of Kenya.
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