Public-private partnerships in the energy sector in Kenya: the case for effective public participation
Munyao, Scola Nduku
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This thesis examines the extent to which the lack of a policy, legal and regulatory framework for public participation in the identification, initiation and appraisal stages of Public Private Partnership (“PPPs") projects in the energy sector in Kenya, particularly in the Lamu coal-fired power Project, has contributed to opposition by stakeholders leading to delays in the implementation of the project. It demonstrates that whereas the Constitution of Kenya, 2010 provides that all sovereign power belongs to the people who then delegate it to the three state organs- the executive, legislature, and the judiciary- the people retain residual powers through which they can call both public entities and the private entities involved in PPPs to account. One of the ways through which this residual power is exercised is through public participation which is one of the national values and principles of governance under Article 10 of the Constitution. Granted that Constitutions are not self-enforcing documents, there is need for additional laws to operationalize this constitutional principle and aid in the day to day governance. No such body of laws has been enacted, yet, in respect of public participation in PPPs. There is, however, a draft public participation policy and a bill pending before the Senate which have been criticized as proposing a cookie cutter-one-size-fits-all- approach regardless of the circumstances of each case. This lacuna has seen entities mandated to carry out public participation involved in tokenism- a mere checking of the constitutional check box- at the expense of meaningful and effective public participation. This thesis proposes incorporation of a public participation framework in line with international standards in the Public Private Partnerships Act, 2013 or an amendment to the Public Participation Bill, 2018 to ensure that it is recognizes and imposes similar obligations for carrying out of effective public participation at all stages of a project on both the public and private entities involved. This will ensure that the resultant projects are acceptable, socially responsive and lead to sustainable development. It also proposes that appropriate sanctions be imposed for non-compliance with the framework so created together with other amendments to ensure realization of the benefits sought in the PPPs contracting framework.