The Public Participation Bill 2016

Objectives of the Bill

The Public Participation Bill 2016 was introduced for first reading in the Senate House of Parliament on 15th February 2017. The purpose of the Bill is to provide a general framework for effective public participation. In particular, the Bill seeks to enhance, promote and facilitate public participation in governance processes to give effect to the constitutional principles of democracy and participation of the people under the following Articles in the Constitution:

• Article 1(2) on exercising of sovereignty of the people through elected representatives or directly;
• Article 10(2) on national values and principles to promote democracy and participation of the people;
• Article 35 on access to information;
• Article 69(1) (d) on obligations in respect of the environment;
• Article 118 on public access and Participation in Parliament;
• Article 174(c) giving powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them through devolution; and (d) to recognise the right of communities to manage their own affairs and to further their development;
• Article 184(1) (c) on participation by residents in the governance of urban areas and cities, 196 public participation and county assembly;
• Article 201(a) on openness and accountability requirements, including public participation in financial matters and;
• Article 232(l) (d) on involvement of the people in the process of policy making in public service.

Guiding Principles in Public Participation

The Bill further provides for guiding principles in public participation in governance, which include:

• That the public, communities and organizations to be affected by a decision shall have a right to be consulted and involved in the decision making process;
• Provision of effective mechanisms for the involvement of the public, communities, organizations and citizens that would be affected by or that would be interested in a decision;
• Participants’ equitable access to the information they need to participate in a meaningful manner;
• That public views shall be taken into consideration in decision making;
• Development of appropriate feedback mechanisms;
• Adherence to the national values under Article 10 of the Constitution;
• Adherence to the principles of leadership and integrity set out in Chapter Six of the Constitution;
• Adherence to the principles of public participation as may be prescribed by any written law; and
• Promotion of sustainable decisions recognizing the needs and interests of all participants, including decision makers.

Development of Specific Guidelines on Public Participation

The Bill proposes that every public body will be required to develop specific guidelines on public participation. To facilitate this, the Bill shall provide general Guidelines on public participation, included as a Schedule to the Act to provide guidance. The Guidelines shall be applicable in the event that a public authority has not developed its own specific guidelines.

The following Government agencies and office holders shall be responsible for developing specific guidelines for public participation and oversight of public participation:

• Relevant committee in Parliament responsible for public participation for purposes of House business in each House;
• The Chief Justice in the case of the Judiciary;
• Secretaries or chief executive officers of independent commissions or offices, boards, authorities or any other public body;
• The Cabinet Secretary for the government Departments responsible for public participation in government ministries;
• The County Assembly Committee responsible for public participation in County Assemblies.
• The county secretaries in the case of County executives.

Publishing of Public Participation Guidelines

Public bodies shall be required to publish their specific guidelines on public participation developed, in the Kenya Gazette within three months of the commencement of the Act and prepare Annual Reports at the end of each financial year. The Annual Report is expected to contain, a description of activities and outcomes of public participation; Description of complains against the institution in respect of public participation, the action taken and period within which the complaint was addressed; as well as any information that may be considered relevant. The report will be expected to be tabled before the National Assembly, the Senate and County Assembly in the case of Counties.

Conducting of Public Participation Consultation

The responsible authority is expected to provide reasonable and meaningful opportunity for the public to participate participation. In determining what is reasonable, the Bill proposes consideration of the following; nature of the legislation or decision to be made; importance of the legislation or decision; and the intensity of the impact of the legislation /decision to the public. Additionally, the Bill proposes that public entities should consider the following factors before conduction public participation;

• The purpose of the public participation;
• Level of public participation required;
• Urgency of the matter; and
• The number and circumstances of interested parties and affected parties;
• The ability of the targeted participants to access the necessary information and the venue.

Adequate notice is expected to be given to the public to ensure they contribute their input. The Bill emphasizes the need to share information to reach a wider target audience. Some of the modes of transmission proposed in the Bill for public entities to use include, television stations; information communication technology centers; websites; community radio stations; public meetings; and traditional media. In addition, use of E-platforms are encouraged in the Bill.

Public entities are expected to ensure that the stakeholders have a fair opportunity to influence the intended process and a programme on the meeting should be availed. The programme is expected to contain, the specific purpose for consultation; the issues or matter for consultation; the community, profession or groups to be consulted; the length of the consultations; and whether the submissions should be oral, written or both.

The Bill provides for persons with disabilities to be afforded an opportunity to participate in the public participation process. In cases where language barriers exist, then the responsible public body should ensure that an interpreter is provided.

For each public participation consultation, a programme is expected to be developed detailing the specific purpose for consultation; the community, profession or groups to be consulted; the length of the consultations; whether submissions should be oral, written or both; and the issues or matter for consultation.

Documents to be used for public participation are required to be simple, concise, provide for a summary of the issues for consultation and set the questions to be addressed. Responses by the public should be carefully and independently analyzed by the responsible authority and the decision by the public authority should be shared with the public in order for them to understand and evaluate the decision made.

The proposed law lay emphasis on the need for public bodies, its representatives and all respondents to be courteous, respectful and civil in public participation processes.