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Kenya

Public Participation (KE0021)

Overview

At-a-Glance

Action Plan: Kenya Action Plan 2018-2020

Action Plan Cycle: 2018

Status: Active

Institutions

Lead Institution: Senate

Support Institution(s): Other actors involved - government Office of the Deputy President, Office of the President, Council of Governors (CoG) Other actors involved - CSOs, private sector, working groups, Multilaterals etc Mzalendo, INFONET Africa, CRECO, International Budget Partnership (IBP), Institute of Public Finance Kenya (IPFK). Katiba Institute, Well Told Story, TISA, Kenya Alliance of Resident Associations (KARA), Institute of Economic Affairs (IEA) Kenya,

Policy Areas

Capacity Building, E-Government, Fiscal Openness, Judiciary, Justice, Legislation & Regulation, Open Parliaments, Participation in Lawmaking, Public Participation, Public Participation in Budget/Fiscal Policy, Regulatory Governance

IRM Review

IRM Report: Kenya Design Report 2018-2020

Starred: Pending IRM Review

Early Results: Pending IRM Review

Design i

Verifiable: Yes

Relevant to OGP Values: Access to Information , Civic Participation , Public Accountability , Technology

Potential Impact:

Implementation i

Completion: Pending IRM Review

Description

Commitment 4: Public Participation
We will work together to improve public participation in development
decision making for better and responsive service delivery
Objective:
To operationalize the Constitutional requirement of public participation on all
matters of policy, decision making and service delivery in Kenya.
Status quo:
We currently do not have a public participation legislation at national level that
provide a general framework for effective public participation as per our
constitutional principles of democracy and participation of the people. Public
participation process is often unstructured and undertaken in a manner that is
contrary to the principles of democracy. There is also little capacity building on
the citizens to enable them engage in the process from an informed, structured
and meaningful way. More often, the process is perceived as expensive, tedious
and time consuming. Citizens are often ill informed when participating in public
forums, thereby compromising the quality of their participation.
Ambition
Design a whole-of-government program that supports meaningful, open, public
participation into National and County Governments and empowers oversight
bodies to hold Governments to Account. More specifically, Public participation in
budget sector hearings by the National Government will be more open and
inclusive. Progressively these hearings should be more open to a larger number
of stakeholders and be held at the county level as well. This was also a key ask
in the Budget and Appropriations Committee report on the budget estimates for
2018/19.
Lead implementing Organization
The Senate
Contact Person:
Hon. Fatuma Dullo
Senate Deputy Majority Leader
+254 707 165 221
Timeline
September 2018 to May 2020
OGP values
Access to information, Public accountability, Citizen Engagement, Use of Technology
Page 24 of 30
New or ongoing commitment
New
Other actors involved - government
Office of the Deputy President, Office of the President, Council of Governors (CoG)
Other actors involved - CSOs, private sector, working groups, Multilaterals etc
Mzalendo, INFONET Africa, CRECO, International Budget Partnership (IBP), Institute of
Public Finance Kenya (IPFK). Katiba Institute, Well Told Story, TISA, Kenya Alliance of
Resident Associations (KARA), Institute of Economic Affairs (IEA) Kenya,
Verifiable and measurable milestones to
fulfil the commitment
New or
ongoing
Start date End date
15. Fastrack the enactment of the Public
Participation Law in Senate
Ongoing September
2018
November
2019
16. Making senate committee proceedings
open by deploying live stream capabilities.
New April
2019
July
2020
17. Develop technology tools and platforms
(Web, SMS) to enhance citizens
participation and feedback (311 type
applications and Petitions)
New May
2019
July
2020
18. Develop an Open Government
Commitment indicators and online Tracker
New March
2019
July
2020
19. Open up Court User Committee (CUC)
complaints and resolution, including the
judiciary ombudsman complaints portal.
New May
2019
July
2020
20. Digitize and make publicly accessible,
Government Performance Contracts for
public scrutiny, monitoring and citizen
feedback
New June
2019
July
2020
21. Roll out a public participation and
engagement campaign in atleast 3
Counties, to sensitize citizens on the
Constitutional provisions, the Public
Participation legislations, tools and
platforms that facilitate engagement with
policy and decision makers.
New June
2019
July
2020

IRM Midterm Status Summary

4. Public Participation

Language of the commitment as it appears in the action plan:

“We will work together to improve public participation in development decision making for better and responsive service delivery.”

Objective:

To operationalize the Constitutional requirement of public participation on all matters of policy, decision making and service delivery in Kenya.

Milestones

  1. FastTrack the enactment of the Public Participation Law in Senate
  2. Making senate committee proceedings open by deploying live stream capabilities.
  3. Develop technology tools and platforms (Web, SMS) to enhance citizens participation and feedback (311 type applications and Petitions)
  4. Develop an Open Government Commitment indicators and online Tracker
  5. Open up Court User Committee (CUC) complaints and resolution, including the judiciary ombudsman complaints portal.
  6. Digitize and make publicly accessible, Government Performance Contracts for public scrutiny, monitoring and citizen feedback
  7. Roll out a public participation and engagement campaign in at least 3 Counties, to sensitize citizens on the Constitutional provisions, the Public Participation legislations, tools and platforms that facilitate engagement with policy and decision makers.

Start Date: September 2018

End Date: July 2020

Editorial note: This is a partial version of the commitment text. For the full commitment text see: https://www.opengovpartnership.org/wp-content/uploads/2018/12/KENYA_Action-Plan_2018-2020_0.pdf

Commitment Overview

Verifiability

OGP Value Relevance (as written)

Potential Impact

Completion

Did It Open Government?

Not specific enough to be verifiable

Specific enough to be verifiable

Access to Information

Civic Participation

Public Accountability

Technology & Innovation for Transparency & Accountability

None

Minor

Moderate

Transformative

Not Started

Limited

Substantial

Completed

Worsened

Did Not Change

Marginal

Major

Outstanding

1. Overall

X

X

X

X

X

X

Assessed at the end of action plan cycle.

Assessed at the end of action plan cycle.

Context and Objectives

Historically, Kenya has engaged in various initiatives to enhance public participation starting with the District Focus for Rural Development (DFRD) Strategy in 1983, to the enactment of the Physical Planning Act (1996), The Local Authority Service Delivery Action Plan (LASDAP) (2001) and Constituencies Development Fund (CDF) in 2003, all focusing on greater participation/ involvement in the areas of budgeting, physical planning and/or development. These initiatives were however often deemed to be top down in nature not offering citizens ample breadth to effectively participate in decision making. [87] Consequently, the Constitution of Kenya (2010) in Article 118 (b), 174 (c) and 196 (1) (b), [88] as well as provisions in the Public Finance and Management Act (2012) and the Public Procurement Act , then made public participation a requirement within legislative, budget and procurement processes. [89] Devolution would also see power and resources decentralized to the county level with the hopes of enhancing civic participation in decision making for development. Section 87 of the County Governments Act (2011) and the Public Finance Management Act (2012) further outline various modalities that counties can establish to enhance public participation including online platforms, notice boards and various fora such as the County Budget and Economic Forum (CBEF), town hall meetings and so on. [90]

However, various challenges have emerged in regard to public participation at the county level including contentions around the enactment of public participation laws and regulations. This is mainly driven by disagreements over the prioritization of use of public resources for public participation. [91] There also appears to be a conflict over the nature and adequacy of participation that would meet constitutional thresholds and lack of clarity on what mechanisms would be considered effective in various contexts. [92] Lastly, there is little public engagement with public participation tools and platforms mainly due to little awareness of the presence and value of these tools. [93] [94] Given these challenges and the constitutional provisions already outlined, improving public participation has been a core component of all of Kenya’s National Action Plans. [95] Initiatives outlined in NAP II were not fully completed and as such efforts are being taken once again to enhance public participation through NAP III.

According to one interviewee, proposals within the current NAP seek to move public participation from being a tokenistic exercise to being more substantive. [96] For instance, the current NAP introduces a campaign for the sensitization of the public on civic participation and what it entails. This is a key step that was lacking in previous OGP plans. Milestone sixteen and seventeen are particularly relevant given the diminishing credibility and growing lack of trust in Parliament given recent scandals involving political leaders. [97] [98] [99] These milestones would also offer an opportunity for Parliament and the Senate to co-create or implement the said milestones with civil society. [100]

The commitment’s milestones are verifiable, in some ways, more specifically outlined than in previous NAPs, with their locus, scope and specific targets better defined than those that were in NAP II. For instance, this commitment can be verified by assessing the States deliverables or outputs as regards enacted laws; the existence of senate livestreaming, open government online trackers, or publicly accessible government performance contracts. The milestones also demonstrate high specificity speaking directly to the outlined problem and ambition. However, specificity of the can be enhanced: for instance milestone fifteen seeks to “fast track the enactment of the public participation law in senate” and milestone nineteen will “open up Court User Committee (CUC) complaints and resolution, including the judiciary ombudsman complaints portal.” The terms ‘fast rack’ and ‘opening up’ could be misconstrued or considered ambiguous making it difficult to determine how progress towards this can be measured.

The commitment is relevant to the OGP value of access to information specifically through the opening up of senate proceedings and the complaints portal as well as enhancing accessibility to government performance contracts. The commitment is also relevant for public accountability in that it not only establishes the regulatory framework necessary for public participation, but goes beyond this to: establish channels of participation; enhance scrutiny; create feedback mechanisms; track responsiveness; and promote informed engagement. The campaign outlined in milestone twenty one could also contribute to improving public participation in development by not only sensitizing communities on the emerging regulatory framework, but could also providing them with the requisite information concerning: the offices to engage; how to frame their engagement; awareness of policy calendars and opportunities for engagement and the most efficient and effective mechanisms of participation; and what feedback and complaints mechanisms are available. [101] Lastly, milestones as outlined also speak directly to the OGP value on technology and innovation for openness and accountability with various activities requiring the development of portals, tools and technology to facilitate the capturing of citizen feedback and for monitoring responsiveness and performance on open government commitments. The commitment is therefore highly relevant to all the OGP values in question.

Despite its promise, the commitment has been coded as “moderate” but with high potential to be transformative. Should the aspirations outlined in this commitment be met, then the result will be better structured public participation processes and engaged citizenry. [102] According to one government official, the commitment would also go a long way to transforming the status quo by “demystifying” how parliament works and raising awareness on the legislative tools and mechanisms available to ordinary citizens. The commitment would also improve the public’s confidence in their ability to participate and stand before committees, having been able to observe ordinary Kenyans doing the same. The commitment would also likely enhance participation in petitions and bills through the e-petitions platform. [103] However, OGP initiatives around public participation are plagued by incompletion: The End-to-End initiative as an integrated service delivery and the CSO-Government complaints portal proposed in NAP I remained inactive at the end of the second OGP cycle (2012-2014) to date. Prescriptions outlined in NAP II as well were also not fully accomplished. A key factor underlying this is the lack of adequate financing where public participation initiatives are concerned. According to one government official the current commitment is similarly plagued. [104]In their view, there was has been no discussion in terms of how some of the milestones in the NAP would be financed. Support from development or other partners will therefore need to be sought in order to implement particularly milestone sixteen and twenty one, though this is yet to be undertaken as of the drafting of this report. [105]

Secondly, while the commitment speaks to “develop[ing] technology tools and platforms to enhance citizen participation and feedback”, there is no direct reference to where these feedback mechanisms will be located and what the focus of their concern will be. For instance whether it will be feedback on participatory processes per se or broader than this or whether it will be tied to thematic areas or not. In addition, all public participation interventions should endeavour to journey through all levels of public participation namely to: inform, consult, involve, collaborate and empower. [106] The milestones as outlined tend towards the lower tiers of this spectrum given that there is no indication that structures or delegated authority have been established to enable citizens to take part in decision making.

Additionally, though the public participation and engagement campaign laid out in milestone twenty one may aid in creating awareness, it is not clear whether the wider framework and infrastructure supporting public participation is also being strengthened alongside these awareness-raising and information sharing efforts. According to one interviewee the accomplishment of this particular milestone could be quite difficult: In their words, “OGP can sound easy but is not… I would say for a county like Makueni it would be easy but for the other who may not have the frameworks in place? and whether the goodwill is there? If the people are suspicious of their governor then even if he wants many things they won’t cascade.[107]According to another stakeholder, the commitment could have grafted in milestones on civic education, through reviving or reformulating the Kenya National Integrated Civic Education Programme (KNICE) as the campaign cannot occur without civic education. [108] This would also ensure that KNICE remains active beyond or between electoral cycles. [109]

Next steps

The commitment could be potentially impactful in the long run if it results in empowered citizens that are able to exploit linkages between data, oversight bodies and participatory mechanisms, for the purpose of fully participating in decision making. To be truly transformative, the IRM researcher recommends that the scope of this commitment be expanded by considering the following in the next action plan:

  • The development of a resource mobilization strategy alongside the NAP to address the problem of limited finances for the implementation of this commitment. [110]
  • Ensuring that milestones also speak to the establishment of the institutional systems and structures needed to operationalize the Senate Public Participation Law or the National Public Participation Bill (2018). One representative from civil society felt that the commitment did not sufficiently address the institutionalization and operationalization of public participation legislation. [111]
  • Building in mechanisms that allow for enhanced responsiveness from the relevant authorities to issues raised by the public.
  • Establish a coordinating framework for the coordination of various stakeholders participating in enhancing public participation, even within OGP.

[62] Ushahidi (2018) 10 Years of Innovation. 10 Years of Global Impact. This Is Ushahidi. Available At: https://www.ushahidi.com/uploads/case-studies/ImpactReport_2018.pdf
[63]JKUAT (2019) Towards Data Driven Informed Decision Making in Health Sector, Corporate Communications Office. Available at:http://www.jkuat.ac.ke/towards-data-driven-informed-decision-making-in-health-sector/
[64] Space in Africa (2019) Kenya passed a law mandating all counties to develop GIS-based database systems and the results are incredible . Space in Africa, May 21, 2019. Available at: https://africanews.space/kenya-passed-a-law-mandating-all-counties-to-develop-gis-based-database-systems-and-the-results-are-incredible/
[65] Ministry Of Devolution And Planning (2017) Guidelines For Preparation of County Integrated Development Plans (Revised), 2017. Available at:https://roggkenya.org/wp-content/uploads/CIDP-GUIDELINES-REVISED-SEPTEMBER-2017.pdf
[66] Digital Earth Africa (2019) The Story. Available at: https://www.digitalearthafrica.org/story
[67] Global Partnership for Sustainable Development (2016) Initiative: Africa Regional Data Cube. Available at: http://www.data4sdgs.org/index.php/initiatives/africa-regional-data-cube
[68] Digital Earth Africa (2019) The Story. Available at: https://www.digitalearthafrica.org/story
[69] Interview 3, Interview with IRM Researcher, 1st September 2019
[70] Interview 3, Interview with IRM Researcher, 1st September 2019
[71] Government of Kenya (2018) Open Government Partnerships National Action Plan III. pg. 14, Available at: https://www.opengovpartnership.org/wp-content/uploads/2018/12/KENYA_Action-Plan_2018-2020_0.pdf
[72] Government of Kenya (2018) Open Government Partnerships National Action Plan III. pg. 21, Available at: https://www.opengovpartnership.org/wp-content/uploads/2018/12/KENYA_Action-Plan_2018-2020_0.pdf
[73] Interview 3, Interview with IRM Researcher, 1st September 2019
[74] Open Geospatial Consortium (OGC), The International Organization for Standards (ISO) Technical Committee 211 Geographic information/Geomatics, International Hydrographic Organization (IHO) (2018) A Guide to the Role of Standards in Geospatial Information Management. Available at: http://ggim.un.org/meetings/GGIM-committee/8th-Session/documents/Standards_Guide_2018.pdf
[75] Open Geospatial Consortium (OGC), The International Organization for Standards (ISO) Technical Committee 211 Geographic information/Geomatics, International Hydrographic Organization (IHO) (2018) A Guide to the Role of Standards in Geospatial Information Management. Available at: http://ggim.un.org/meetings/GGIM-committee/8th-Session/documents/Standards_Guide_2018.pdf
[76] Ibid
[77] Interview 3, Interview with IRM Researcher, 1st September 2019
[78] Interview 3, Interview with IRM Researcher, 1st September 2019
[79] Civil society participant (2019) Civil Society Open Government Partnership Meeting, 14th November 2019, Nairobi.
[80] Civil society participant (2019) Civil Society Open Government Partnership Meeting, 14th November 2019, Nairobi.
[81] S, Ganapati (2010) Using geographic information Systems to increase Citizen Engagement. IBM Center for The Business of government. Available at: https://icma.org/sites/default/files/301388_GIS.pdf
[82] Mutua, F., Mwaniki, D. (2017) GIS Needs assessment in Kenya: A County and National level Analysis on the State of GIS and its Application for Spatial Planning in Kenya. Available at: https://www.undp.org/content/dam/kenya/docs/Democratic%20Governance/UNDP-KE-GIS-Needs-Assessment-Report-2017.pdf
[83] Ibid.
[84] Johnson, P.A., Sieber, R., Scassa, TA., Stephens, M., Robinson, P. (2017) The Cost(s) of Geospatial Open Data. Transactions in GIS.;21:434–445.
[85] Civil society participant (2019) Civil Society Open Government Partnership Meeting, 14th November 2019, Nairobi.
[86] Mutua, F., Mwaniki, D. (2017) GIS Needs assessment in Kenya: A County and National level Analysis on the State of GIS and its Application for Spatial Planning in Kenya. Available at: https://www.undp.org/content/dam/kenya/docs/Democratic%20Governance/UNDP-KE-GIS-Needs-Assessment-Report-2017.pdf
[87] Omolo, A(2011) Policy Proposals On Citizen Participation In Devolved Governance In Kenya The Institute For Social Accountability (TISA) https://www.tisa.or.ke/images/uploads/Policy_Recommendations_on_Citizen_Participation-TISA_2011.pdf
[89] Othim, C (2018) Independent Reporting Mechanism (IRM): Kenya Progress Report 2016- 2018, Independent Researcher, Government of Kenya (2018) Open Government Partnerships. Available at: https://www.opengovpartnership.org/wp-content/uploads/2018/12/KENYA_Action-Plan_2018-2020_0.pdf
[90] CISP (2017) Effective Public Participation Mechanisms in Mombasa, Kilifi, Taita Taveta and Kajiado Counties. http://developmentofpeoples.org/uploads/analysis/analysisPARTICIPATION-MAIN-Book_Amended.pdf
[91] Ibid.
[92] Ibid.
[93] Mariru, P (2019) What About Public Participation? Where Are We? ILA Kenya, October 16th, 2015,
[94] Interview 13, Interview with IRM Researcher, 13th November 2019
[95] Kenya OGP Steering Committee (2016) The Republic of Kenya Open Government Partnership National Action Plan II July 2016 – June 2018. Available at: https://www.opengovpartnership.org/wp-content/uploads/2017/04/Kenya_AP2_2016_0.pdf
[96] Interview 6, Interview with IRM Researcher, 26th August 2019.
[97] Maina, W (2019) State Capture: Why Kenya Has Been Unable to Slay the Corruption Dragon. The Elephant, 22 August 2019. Available at: https://www.theelephant.info/features/2019/08/22/state-capture-why-kenya-has-been-unable-to-slay-the-corruption-dragon/
[98] Opalo,K. (2019)Kenyans are fed up with Jubilees corruption. The Standard, 2 Mar 2019 . Available at: https://www.standardmedia.co.ke/article/2001314951/kenyans-are-fed-up-with-jubilee-s-corruption
[99] Mpungu, P (2019) Kenya’s corruption crackdown: New era, or political theatre? Al Jazeera, 27 Jul 2019. https://www.aljazeera.com/ajimpact/kenyas-corruption-crackdown-era-political-theater-190726154554617.html
[100] Interview 6, Interview with IRM Researcher, 26th August 2019.
[101] Interview 13, Interview with IRM Researcher, 13th November 2019.
[102] Interview 13, Interview with IRM Researcher, 13th November 2019.
[103] Interview 13, Interview with IRM Researcher, 13th November 2019.
[104] Interview 13, Interview with IRM Researcher, 13th November 2019.
[105] Interview 13, Interview with IRM Researcher, 13th November 2019.
[106] Victorian Auditor General’s Office (2015) Public Participation in Government Decision-making: Better Practice Guide. https://www.audit.vic.gov.au/sites/default/files/20150130-Public-Participation-BPG.pdf
[107] Interview 6, Interview with IRM Researcher, 26th August 2019
[108] Interview 10, Interview with IRM Researcher, 12th August 2019 and Interview 13, Interview with IRM Researcher, 13th November 2019
[109] Interview 10, Interview with IRM Researcher, 12th August 2019
[110] Interview 13, Interview with IRM Researcher, 13th November 2019.
[111] Interview 10, Interview with IRM Researcher, 12th August 2019

Commitments

  1. Create public beneficial ownership register

    KE0024, 2020, Access to Information

  2. Implement e-government system adopting Open Contracting Data Standard

    KE0025, 2020, Access to Information

  3. Publish open data to spur innovation in public service delivery and development

    KE0026, 2020, Access to Information

  4. Increase efforts to promote public participation in the legislative process

    KE0027, 2020, Civic Space

  5. Apply County Peer Review Mechanism to improve public service delivery

    KE0028, 2020, E-Government

  6. Implement Access to Information Act

    KE0029, 2020, Access to Information

  7. Implement legislation to increase access to justice

    KE0030, 2020, Access to Justice

  8. Build institutional support of OGP

    KE0031, 2020, Capacity Building

  9. Beneficial Ownership

    KE0018, 2018, Access to Information

  10. Open Contracting

    KE0019, 2018, Access to Information

  11. Open Geo-Spatial Data for Development

    KE0020, 2018, Access to Information

  12. Public Participation

    KE0021, 2018, Capacity Building

  13. Governance Indices

    KE0022, 2018, Capacity Building

  14. Open Government Resiliency

    KE0023, 2018, Capacity Building

  15. More Transparent and Participatory Development of Climate Polices at the National and Subnational Level

    KE0010, 2016, Access to Information

  16. Enhancing Preventive and Punitive Mechanisms in the Fight Against Corruption and Unethical Practices

    KE0011, 2016, Anti-Corruption

  17. Enhance Transparency in the Legislative Process

    KE0012, 2016, E-Government

  18. Publish Oil and Gas Contracts

    KE0013, 2016, Anti-Corruption

  19. Starred commitment Ensure Greater Transparency Around Bids and Contracts

    KE0014, 2016, Anti-Corruption

  20. Create Transparent Public Procurement Process, Public Oversight of Expenditure and Ensure Value-For-Money Towards Citizen Priorities

    KE0015, 2016, Access to Information

  21. Improving Access to Government Budget Information and Creating Wider and More Inclusive Structures for Public Participation

    KE0016, 2016, E-Government

  22. Starred commitment Enhance Right to Information

    KE0017, 2016, Access to Information

  23. Starred commitment Improving Transparency in Electoral Processes: 1.A. Definition of Electoral Boundaries and Name.

    KE0001, 2012, Media & Telecommunications

  24. Improving Transparency in Electoral Processes: 2.B. Voting Information Online

    KE0002, 2012, Access to Information

  25. Promoting Public Participation: 1.B. End-To-End Service Delivery Portal

    KE0003, 2012, E-Government

  26. Promoting Public Participation: 1.D. Public Complaints Portal

    KE0004, 2012, E-Government

  27. Promoting Public Participation: 2.C. Kenya Action Plan Online

    KE0005, 2012, Public Participation

  28. Promoting Public Participation: 1.C. Open Data Portal

    KE0006, 2012, Access to Information

  29. Starred commitment Improving Transparency in the Judiciary: 2.A. Public Vetting of Judges and Case Allocation System

    KE0007, 2012, E-Government

  30. Open Budgets: 3.a. Improve Kenya's OBI Index

    KE0008, 2012, Fiscal Openness

  31. Open Budgets: 3.B. Increase Public Participation in Budgetary Processes

    KE0009, 2012, Access to Information

Open Government Partnership