Kenya Action Plan Review 2020-2022

This product consists of an IRM review of Kenya’s 2020–2022 action plan. The action plan is made up of eight commitments. This review analyzes the strength of the action plan to contribute to implementation and results. For the commitment-by-commitment data, see Annex 1. For details regarding the methodology and indicators used by the IRM for this action plan review, see Section I: Methodology and IRM Indicators.

Overview of the 2020–2022 Action Plan

Kenya’s fourth action plan continues ambitious reforms from prior plans, including the adoption of open contractingA transparent procurement process, known as open contracting, increases competition, improves public service delivery, and ensures governments better value for their money. Technical specifications: C... More data standards, implementation of the Access to Information Act, and the promotion of meaningful participation in legislative processes. It introduces new policy areas like improving access to justiceAccessible justice systems – both formal and informal – ensure that individuals and communities with legal needs know where to go for help, obtain the help they need, and move through a system tha... More. Commitments primarily focus on increasing transparencyAccording to OGP’s Articles of Governance, transparency occurs when “government-held information (including on activities and decisions) is open, comprehensive, timely, freely available to the pub... More and civic participation. They could include stronger actions to enhance accountability through feedback and redress mechanisms. Moving forward, the Kenyan OGP Steering CommitteeThe Steering Committee is OGP’s executive decision-making body. Its role is to develop, promote and safeguard OGP’s values, principles and interests; establish OGP’s core ideas, policies, and ru... should strengthen its oversight role, coordinating with implementing agencies to ensure that milestones have adequate resources, are met on time, and to their full extent.

Kenya plays a global leadership role as a member of the OGP Steering Committee, which has increased their drive to become a role model among OGP members. The introduction of their fourth action plan describes leadership objectives at local, national, regional, and global levels. This will allow Kenya to speak to open governance efforts at all levels of government, from subnational governments to their international peers. Moving forward, Kenya needs to address implementation gaps from past action plans by joining resources and actors to push for strong implementation of this plan.

Kenya’s fourth action plan (2020–2022) has eight commitments. Six are carried over from previous action plans, both to complete unfinished milestones and introduce new milestones to improve their ambitionAccording to OGP’s Articles of Governance, OGP commitments should “stretch government practice beyond its current baseline with respect to key areas of open government.” Ambition captures the po... and promote reforms. For the first time, Kenya addresses access to justice as a policy area in an OGP action plan.

Multistakeholder engagement during the development of the action plan improved significantly compared to previous co-creation processes.[1] Various forums allowed government-CSO conversations. In the “Open Dialogue” forum, the government allowed all interested actors from government and civil society to jointly make and prioritize proposals. (For example, whereas there was a strong push for a standalone commitmentOGP commitments are promises for reform co-created by governments and civil society and submitted as part of an action plan. Commitments typically include a description of the problem, concrete action... on genderOGP participating governments are bringing gender perspectives to popular policy areas, ensuring diversity in participatory processes, and specifically targeting gender gaps in policies to address gov... More, the open dialogue forum agreed to integrate gender related activities into the milestones.) Clustered working groups of government and CSO actors then documented policy problems and designed specific commitments and milestones. The multistakeholder forum (MSF), made up of representatives from the different cluster groups, considered and endorsed the draft commitments for inclusionOGP participating governments are working to create governments that truly serve all people. Commitments in this area may address persons with disabilities, women and girls, lesbian, gay, bisexual, tr... More in the action plan.

This action plan has several important features that could generate strong results. The plan engages the three arms of government: the executive, legislative, and judicial (the first two having representation in the National Steering Committee). If commitments are fully implemented, Kenya could prove how coordination between the three powers of the state contributes to better results. Moreover, the alignment of government and CSO perspectives (from the strong multistakeholder engagement) and the involvement of the different arms of government creates buy-in and unity of purpose that could promote collaborative implementation. For example, involvement of CSOs could yield positive returns in resource mobilization and community engagement, while involvement of parliament may create familiarity and ownership of proposed bills, and thus speed up enactment. Finally, during the development of this plan, the MSF considered reforms that already had the approval and goodwill of government leadership, so that initiatives prioritized for implementation would be less affected by political transitions. This is particularly important as implementation will occur during general electionsImproving transparency in elections and maintaining the independence of electoral commissions is vital for promoting trust in the electoral system, preventing electoral fraud, and upholding the democr... More and constitutional amendments. During implementation, all actors from government and civil societies should work very closely to maintain this momentum and guard the ambition of the plan. The plan therefore aims to push implementation and institutionalization of these reforms to ensure continuity beyond political transitions.

This review focuses on the four most promising commitments. Whereas all eight commitments address long-standing priorities both at national and subnational levels, the following four commitments were selected as “promising commitments” based on their ambition, verifiabilityOGP commitments should be clear and specific enough to enable measurement of their progress. Verifiable commitments include specific activities that can be monitored. Following an action plan’s subm..., and relevanceAccording to the OGP Articles of Governance, OGP commitments should include a clear open government lens. Specifically, they should advance at least one of the OGP values: transparency, citizen partic... to OGP values:

• Commitment 2 on open contracting aims to adopt an open contracting data standard for all stages of public procurementTransparency in the procurement process can help combat corruption and waste that plagues a significant portion of public procurement budgets globally. Technical specifications: Commitments that aim t... More in Kenya and secure legislative frameworks for whistleblower protection.
• Commitment 4 on public participationGiving citizens opportunities to provide input into government decision-making leads to more effective governance, improved public service delivery, and more equitable outcomes. Technical specificatio... and legislative openness seeks to open up parliament by providing access to, and publication of, parliamentary proceedings and tracking of bills and petitions. It will also entrench public participation and civic educationAccountability within the public education system is key to improving outcomes and attainment, and accountability is nearly impossible without transparent policies and opportunities for participation ... by establishing legal frameworks and guidance, and adopt technology for participation.
• Commitment 6 will create structures for effective implementation of the Access to Information Act and provide an open and accessible public debtOpenly disclosing information about government debt enables informed decision-making, mitigates the risk of financial instability, and allows citizens to hold their governments accountable for respons... More register.
• Commitment 7 proposes measures to enhance access to justice through implementation of alternative justice mechanisms.

Promising Commitments in Kenya’s 2020-2022 Action Plan

Section II focuses on four commitments (2, 4, 6, and 7) that the IRM identified as having the potential to realize the most promising results. This review will inform the IRM’s research approach to assess implementation in the results report. The IRM results report will build on the early identification of potential results from this review to contrast with the outcomes at the end of the implementation period. This review also analyzes challenges, opportunities, and recommendations to contribute to the learning and implementation process of this action plan.

This section does not include an individual review of four of the eight commitments from the action plan (1, 3, 5, and 8), which were assessed by the IRM to have modest potential for results. These commitments are a positive step forward but have moderate ambition. However, this classification is based on the commitment language as written; it is possible for the commitment actors to conduct implementation in a way that yields transformative results and significantly impacts policy areas.

• Commitment 1, on beneficial ownership, advances Kenya’s efforts to fight corruption and comply with international standards. It continues incomplete activities of previous action plans and other ongoing government commitments, but faces significant commitment design problems. First, the commitment does not make the e-register public. The beneficial ownership information regulations of 2020^[2] provides access only for certain authorities. As a result, a public notice by the Business Registration Services,^[3] while communicating to the public on the use of the e-register, specifically indicates the inaccessibility of the register to the public. In the 2016 London Anticorruption Summit, Transparency International coded the commitment to establish a central public register on companies’ beneficial ownership information “ambitious;”^[4] no public access curtails this ambition. However, as explained by Stephanie Muchai,^[5] publishing the beneficial ownership register would require an amendment of the 2019 Companies Act and the consequent 2020 regulations. This amendment may not be practical given the time, resource, and mobilization limits of the plan’s implementation window. Secondly, the high court nullification of some laws^[6] (including the Miscellaneous Amendment Act 2019 that gave effect to beneficial ownership) could stall efforts on beneficial ownership transparency. While the high court suspended its ruling for a period of nine months to allow the respondents to comply with constitutional requirements,^[7] the court’s ruling will determine the application and validity of the legislation, and by extension, the implementation of beneficial ownership transparency. Lastly, as explained in the 2018–2020 IRM design report,^[8] the realization of Milestone 2 is contingent on significant external factors outside the mandate of the Business Registration Service (BRS). Milestone 2 relies on actions by the Ethics and Anticorruption Commission, the Public Procurement Regulatory Authority, and the courts to be able to generate a list of companies convicted of bribery and corruption; these institutions’ cooperation is beyond the scope of the BRS. Further, the design report also highlighted the need to verify beneficial ownership information submitted by companies. The action plan does not indicate whether there will be any specific steps to verify such information. Therefore, although advancing beneficial ownership transparency is a priority among country stakeholders, this commitment continues ongoing activities from previous action plans without addressing existing concerns about their implementation.

Two commitments (Commitment 3 on open development data and Commitment 5 on public service delivery) address pressing national issues, but their milestones do not clearly indicate how their implementation will yield significant results.

• Commitment 3 builds on Kenya’s previous action plan, which aimed to improve access to open geospatial data in four targeted policy priorities: food and nutrition security, disaster management, and health. It includes similar milestones continuing to increase the publication of capital projects’ GIS data in county budgets and promote its use through establishment of policy frameworks. It adds new activities that will establish conditional support grants and implement disaster early warning systems. However, it does not clearly state how the milestones address problems faced by citizens (e.g., food security, housing and infrastructure challenges, and climate change), or how citizens can interact with this information to promote solutions. Rather, the commitment’s influence is implied; the key output—datasets—will be relevant for internal use by other government operatives, who will then design products and policies that directly affect citizens.
• Commitment 5 will strengthen peer review and learning among county (decentralized) governments. However, going by the commitment language, the milestones only affect the government, and do not reference any specific interfaces where citizens and CSOs can engage to promote transparency or accountability, as implied in the commitment description. Thus, during implementation, the government should ensure civic participation and government accountability by creating a space for citizens to utilize the data published and provide feedback on government processes. Moreover, the commitment could promote accountability by explicitly guaranteeing that county governments address and act upon citizen feedback. Similarly, in launching the County Peer Review Mechanism, implementers could create active forums for citizen engagement and input.
• Commitment 8 creates OGP resilience through institutional support and multistakeholder engagement in OGP processes. Since it institutionalizes OGP processes and facilitates the action plan’s implementation, the IRM will assess it as part of Kenya’s efforts to meet OGP procedural recommendations and guidelines.

The four promising commitments that follow are all initially assessed to be ambitious, verifiable, and relevant to OGP values. They offer improvements to government practices to better realize open governance.

Table 1. Promising Commitments

[1] In developing the third national action plan (2018–2020), Kenya did not meet the OGP minimum requirement for public influence during cocreation (known as “involve”). Details of that stakeholder engagement are provided in Kenya’s design report, available at https://www.opengovpartnership.org/documents/kenya-design-report-2018-2020/.

^[2] Kenyan National Assembly, The Companies Act (Beneficial Ownership Information) Regulations, 2020 (Kenya Law, accessed Oct. 2021), http://kenyalaw.org/kl/index.php?id=10221.

^[3] Ofc. of the Attorney General and Dept. of Justice, “Beneficial Ownership Information Submission—Deadline Extension for a Period of Six months with Effect from 1^st February 2021” (Business Registration Service, 27 Jan. 2021), https://brs.go.ke/assets/downloads/Press_Release_Extension_BO.pdf.

^[4] Transparency International, “43 Countries, 600 Commitments: Was the London Anti-Corruption Summit a Success?” (12 Sep. 2016), https://www.transparency.org/en/news/43-countries-600-commitments-was-the-london-anti-corruption-summit-a-succes.

^[5] Stephanie Muchai (East Africa lead for Open Contracting at Hivos/Open Contracting, Country Engagement Developer, CSO OGP SC member), interview by IRM researcher, 5 Apr. 2021.

^[6]Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) eKLR (High Court of Kenya, 2020) http://kenyalaw.org/caselaw/cases/view/202549/.

^[7] Oraro and Company Advocates, “Disclosure of Beneficial Ownership of Companies In Kenya” (2021), https://www.oraro.co.ke/2020/11/02/disclosure-of-beneficial-ownership-of-companies-in-kenya/.

^[8] Lindah Oduor-Noah, Independent Reporting Mechanism (IRM): Kenya Design Report 2018–2020 (OGP, 1 Apr. 2021), https://www.opengovpartnership.org/documents/kenya-design-report-2018-2020/.