Public voices matter - an analysis of public participation and the role of legislators in Kenya

Abstract

The Constitution of Kenya 2010 mandates that public participation is facilitated by the legislators in Kenya, yet the effort put into public participation is minimal to none. Notwithstanding the fact that these legislators have a history of treating public participation as a formality. Kenya is a democratic state, and the people are sovereign and being that as it is, they have a right to participate in matters concerning them. With the promulgation of the 2010 Constitution in Kenya, the expectations were that there would be active public participation and a culture of justification, since the 2010 Constitution brought the aspect of transformative constitutionalism to Kenya. Courts have also emphasized that the test to be used is that of reasonability where the citizens are given a reasonable opportunity to participate in matters governing them. However, the legislators are yet to show efforts they have taken to make public participation significant in Kenya or meet this threshold of reasonability. This study investigates whether the Constitution of Kenya requires the legislators to materially take into account the information received during public participation when legislating. Doctrinal research was used to conduct this study through an analysis of constitutional ideas, scholarly work and cases. The legislators in Kenya, barely give public participation the urgency and importance it needs. Therefore, there is need for reasons to be given for the rejection or acceptance of public opinions, there is need for inclusion of citizens who are directly affected by the proposed legislation in the process, there needs to be sufficient advertisement of an ongoing public participation process and lastly, the citizens need to be accorded a reasonable opportunity to participate in the process.