Increase efforts to promote public participation in the legislative process (KE0027)

We will strive to mainstream meaningful public participation and in all developmental spheres in the country, ensuring that the voice of the public counts and shapes the eventual developmental outcome for ownership. Additionally, we shall seek to boost legislative openness as part of the effort toward securing open and accountable governance.

Objective To optimally actualize the constitutional aspiration on public participation, identified as a national value and principle of governance and a key requirement in legislative, economic and social development.

Status quo The Constitution of Kenya, 2010 (COK, 2010), in Article 10, identifies public participation as one of the key national values and principles of governance. Via Article 118, COK, 2010 binds Parliament to engaging members of the public in its business. It requires Parliament to ‘facilitate public participation and involvement in the legislative and other business of Parliament and its committees.’ Despite being over a decade old provision, implementation of public participation largely remains sub-optimal, either completely ignored or half-heartedly implemented. A nationallevel legislation to refine its implementation is yet to be passed, thus confining the process largely to the zone of mere formality and tokenistic undertaking. It fails the test of inclusivity and genuine desire to incorporate the views as shared by members of the public. There is lack of robust and effective mechanisms of binding duty bearers to meaningful public participation process. Access to information, to inform optimal participation by the public, lacks optimal guarantee.

Ambition Secure a framework to allow for meaningful public participation in the country’s governance ecosystem, in all its variations; political, economic and social. Further open up the Parliament and County Assemblies by ensuring that all proceedings, both plenary and committee, are availed to the public for comprehensive scrutiny and robust engagement with the country’s law making system and regime. This is in furtherance of legislative openness in keeping with the 2012 ‘Declaration on Parliamentary Openness’ which in part provides that ‘parliamentary openness enables citizens to be informed about the work of parliament, empowers citizens to engage in the legislative process, allows citizens to hold parliamentarians to account and ensures that citizens’ interests are represented.’ By seeking to secure the place of civic education, focus shall also be trained on empowering and equipping the public with requisite capacity to meaningfully engage with and in public participation spaces and engender in them the consciousness to ensure that their voices count in the best way possible. Intensifying the use of technology, particularly coming against the backdrop of the COVID-19 pandemic, to accord multiple and diverse alternatives of public participation

No. Verifiable and measurable milestones to fulfill the commitment Status of milestone Start Date End Date 1. Entrench legislative openness through timely proactive disclosure of information and providing access to Parliamentary and county assemblies plenary and committee proceedings and timely publication of all proceedings New February 2021 December 2021 2. Develop publicly accessible petitions tracker for Parliament and select county assemblies New February 2021 December 2021 3. Enactment of the Public Participation Law in Parliament Ongoing February 2021 May 2022 4. Draft national Civic Education Legislation New February 2021 May 2022 5. Expanding civic space by operationalization of the Public Benefits Organization Act. New February 2021 May 2022 6. Adopt and enhance the use of technology as an enabler for public participation New February 2021 May 2022 7. Develop guidelines to guarantee inclusivity in public participation to include Women, Youth and Person with Disability, minority and marginalized communities New February 2021 May 2022 8. Institutionalization of the Open Government Partnership (OGP) in Parliament at both technical and political level through existing mechanisms and regular Speakers’ Roundtable New February 2021 May 2022 9. Pursuant to County Governments Act, operationalize citizen service centers in at least five (5) counties to improve access to information on budget implementation, pursuant to Article 119 of the 2010 Constitution New February 2021 May 2022

Action Plan Review

Commitment 4. Public Participation and Legislative Openness

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Substantial

Lead institution: The Senate of the Republic of Kenya

For a complete description, see Commitment 4 in Kenya’s 2020–2022 action plan at: https://www.opengovpartnership.org/documents/kenya-action-plan-2020-2022/.

Context and Objectives

A major highlight of Kenya’s constitutional framework is the requirement for public participation in all governance and administrative activities. Public participation is appreciated as the main vehicle for legislative openness. The Kenyan constitution and several other laws ^[19] address public participation. However, in practice, public participation has been hampered by challenges including a lack of interest from government actors in creating meaningful spaces for participation, [20] a lack of standards, inadequate access to information, non-inclusivity and the high cost and inadequate budgeting for public participation activities. ^[21] The result has been a tokenistic practice, with insufficient input into governance processes and service delivery. ^[22]

Kenya committed to increase openness and citizen engagement in parliamentary work under the Declaration on Parliamentary Openness. ^[23] Kenya also has addressed public participation and legislative openness in every OGP action plan. IRM design reports state that implementation of these efforts vary. NAP I saw not started/limited implementation, NAP II saw substantial; and early results for NAP III indicate implementation is ongoing. Outcomes of these commitments include publishing county public participation guidelines, a public participation bill with stakeholder consultations, parliamentary proceedings and Hansards, live broadcast of parliament sessions, and bill trackers by parliament as well as civil society. [24] 

This current commitment blends work from previous action plans [25] with new areas. Continued themes are: (i) passing public participation legislation, (ii) developing and implementing tools, technology, and alternative media for participation, (iii) access to information on government services and performance, and (iv) legislative openness (through disclosure of parliamentary information, access to proceedings, and development of trackers for bills and petitions). New areas are legislation for civic education and public benefit organizations, and enhancing inclusivity.

Previous commitments initiated drafting and consultations on public participation guidelines and legislation, but enactment of the law remains incomplete. Similarly, several gaps stand in the way of legislative openness. Proceedings and Hansards of parliament committees and county assembly committees have not been adequately provided or made accessible. This limits the ability of citizens and parliamentary monitoring organizations such as Mzalendo Trust to track and monitor discussions and contributions in the various committees. ^[26] At the time of this research, ^[27] there were several trackers available on the National Assembly website that provided information on status of bills tabled before the House. ^[28] Similarly, the Senate website listed bills and allowed citizen comments on the bills. While these initiatives are commendable, the commitment implementers sought to enhance the trackers to provide more information, and expand citizen-legislator interactions on the platforms. The previous steps implemented have largely been technical or formal steps to improve participation. The underlying constraints have not been adequately addressed. Access to information has improved over the years, but is not yet at “best practice” level. Similarly, none of the commitments or milestones have addressed the frigidity from government actors in creating meaningful spaces for participation, nor addressed the high cost of public participation activities.

The commitment provides mechanisms for better-structured participation, inclusivity, and transparency in legislative processes. It is anticipated that the proposed legislation will provide guiding standards for participation and will address inclusivity. The commitment also embraces technology to enhance participation, particularly important during the Covid-19 pandemic. Additionally, the two new areas (drafting of the national civic education law and implementing the Public Benefits Organization Act) will expand spaces for civic engagement, ultimately aiming to counter the frigidity of government officials by increasing citizen demand for meaningful participation. The Public Benefit Organization Act was enacted in 2013 (but commenced in 2016) to provide a legislative framework for the registration, regulation, and oversight of public benefit organizations such as nongovernmental and civil society organizations. Although this legislation is enacted, the regulations that guide implementation of the act are not yet finalized, hence the aim of the milestone. [29] 

Milestone 8 contributes to the broader reforms listed under Commitment 8, Milestone 6. The aim of the speaker’s roundtable is to widen conversation on OGP beyond the few selected legislators, to increase uptake of initiatives through awareness creation, and advocate for establishing technical teams on OGP at both the Senate and National Assembly.

These reforms are relevant to the OGP values of access to information and civic participation. 

Potential for results: Substantial

The milestones in this commitment are broad in scope and put forward different activities not necessarily linked to each other, but independently valuable. Individually, the milestones have varying potential for results, but cumulatively, they have the potential to generate important changes across government.

The Constitution of Kenya requires the parliament and county assemblies to involve the public in their legislative processes. Regarding public service delivery, the constitution requires transparency and public provision of timely, accurate information, as well as involvement by the people in the decision making. The African Center for Open Governance, in its policy brief on Public Participation and Parliamentary Oversight, ^[30] discusses factors hindering meaningful public engagement in the parliamentary committees and made recommendations, some of which speak to this commitment. These include: (i) making online resources interactive to improve interactions between legislators and committees, and also the public and the parliament; (ii) promoting user-friendly technical access through better navigation aids and presentation styles, and (iii) applying reforms on parliamentary openness to county assemblies, with appropriate modifications. This commitment sets out to create new, and enhance existing, opportunities for the public to learn about, track, and influence parliamentary activities. The proposed trackers will improve on the initiatives of NAP III and be more interactive and more informative. The service charters will be developed to provide necessary information on government services and hopefully foster informed decision making by citizens.

Providing access to information through disclosure of committee proceedings (parliament and county assemblies) is pertinent to informed participation and monitoring by citizens and CSOs. This commitment undertakes to make parliamentary committee proceedings accessible. Most of the technical work by parliament is handled at committee level, and thus it is imperative that the Hansard from these committees are made equally accessible. Devolving transparency initiatives of the Senate and National Assembly to county assemblies while expanding access to information and citizen engagement at all levels will widen access to information and space for citizen participation.

Regarding public participation guidelines, several versions of guidelines are pre-existing, such as the guidelines for public participation in the legislative processes and the county public participation guidelines. [31] However, these provide general overarching direction, stating the key areas for participation and the general right to participation. They do not spell out specific steps to ensure inclusivity, nor do they provide clear redress mechanisms for citizen feedback. Milestone 7 borrows from the experience of Elgeyo Marakwet ^[32] on inclusivity in public participation and tracking input from citizens proposals to final decision making. While guidelines anchored in legislation can institutionalize public participation, guidelines alone are insufficient to ensure meaningful participation. Successful participation requires the commitment and initiative by the government, citizens, and CSOs, as well as adequate funding for participation activities.

Implementing the Public Benefits Organization Act will strengthen the relationship between CSOs and government, and will regulate the sector by setting standards of governance within the sector, mechanisms for self-regulation, protective rights, and by enhancing cooperation between government, development actors, stakeholders, and citizens. More importantly, as explained by Pamela Ager (Oraro and Company Advocates), implementing the act will require the government to respect the freedom of association and assembly and provide an enabling environment in which public benefit organizations can be established and function. Further, the government will be enjoined to involve public benefit organizations in policy decisions that affect them, particularly at the local level. [33]

The speaker’s roundtables will build resilience by establishing a practice that will influence the next elected House to uphold and promote OGP initiatives. It also builds into Commitment 8, which proposes roundtables with the three arms of government. Anticipated outcomes of the speaker’s roundtables include: (i) briefings and engagement between legislators and implementers to begin advocacy for legislative and resource support, (ii) support for donors’ roundtable since parliamentarians are expected to participate in the donors’ meetings, and (iii) promoting the cocreation of solutions by government and CSOs. 

Opportunities, challenges, and recommendations during implementation

Moving forward, the IRM suggests:

● Ensure adequate financing: Despite repeated efforts, initiatives on public participation remain incomplete, with inadequate financing being a key challenge. ^[34] Implementers should capitalize on the strong CSO engagement to collaboratively advocate for national and county government financing.

● Advocate for a public participation law: While the 2018–2020 NAP sought to pass a national public participation law, the court ordered an immediate cessation of considering any bill before the Senate and National Assembly, to meet requirements of Article 110 (3) of the Constitution ^[35]. While the consequent actions of the parliamentary houses is beyond the scope of this action plan, implementers could lobby for prioritizing the public participation bill when consideration resumes.

● Enact the civic education legislation: The proposed civic education legislation can promote civic participation and is timely given the approaching constitutional amendments and general elections. This regulation would assist CSOs’ advocacy work. Implementation could advance beyond drafting the law and target its enactment. 

● Devolve legislation trackers to county assemblies: Implementers could develop trackers for county assemblies to allow for transparency and interaction at the local level. Additionally, county trackers will be helpful for Senate’s monitoring of county activities.

● Strengthen CSO participation in implementing the commitment: Several milestones’ general content and implementation steps will be a challenge in implementation and monitoring. Mzalendo, as the lead CSO implementer, could bring together other civic actors to advocate for, and support strong implementation of the commitment.

Results Report

Commitment 4. Public Participation and Legislative Openness

This is one of the most crucial commitments in Kenya’s quest for open government. The commitment as a whole has Constitutional underpinnings [42], and Kenya’s judiciary has on several occasions struck down legislation and castigated administrative actions which are deemed to have sailed through without public participation. Most notably, the Supreme Court of Kenya upheld the High Court’s determination which struck down the Building Bridges Initiatives (BBI) Bill for lack of public participation among other reasons, notwithstanding the fact that it was spearheaded by the sitting president then. [43]

Public participation and legislative openness have been part of Kenya’s commitment in every NAP with varying degrees of results. [44] Public participation is recognized as a vehicle for legislative openness as it ensures that no laws are passed by parliament without the voice of the common citizens. However, public participation has been hampered by lack of interest from government actors in creating meaningful spaces for participation, lack of standards, inadequate access to information, non-inclusivity, as well as high cost and inadequate budgeting for public participation activities in practice, [45] barring the suggestion of stronger CSO involvement in implementing this commitment.

The commitment’s limited level of implementation was the primary factor in its unrealized potential to open government. However, the use of social media to share the proceedings of parliament at national level is a commendable practice that continues from the previous NAP. The August 2022 general elections and political division within government just before the elections significantly affected the full implementation of this commitment as many of the key players shifted their focus and priorities on the political campaigns. [46]

Through the first milestone, Kenya achieved mixed results to entrench legislative openness through timely and proactive disclosure of information as well as access to parliamentary and county assembly plenary and committee proceedings. [47] The plenary proceedings of the Senate and the National Assembly are often broadcasted through mainstream media, which is accessible nationally. [48] The National Assembly has also made a laudable attempt to keep citizens updated of its work, as everyday there is a session broadcasted through its official Twitter and Facebook channels. For instance, house business that was transacted on Wednesday, 1 March 2023, was published in a summarized manner through the official Facebook Channel on the same day. [49] There is still work to be done regarding committee proceedings at the national level. However, at the county level, save for snippets of parliamentary sessions on social media, there was no evidence pertaining to County Assembly proceedings in the manner designed and implemented at the national level.

The second milestone sought to develop a publicly accessible petition tracker for parliament and select county assemblies. At the time of developing this milestone, the parliament already operationalized its petition tracker which is accessible to the public. [50] However, according to Mzalendo Trust, the idea of this commitment was to create a petition tracker that could help petitioners track the progress or stage in which their petition is within the parliament’s process, without necessarily having to follow up. This has not been done yet. Instead, they developed a compendium and hope to automate this data into a petition tracker that is up to date and accessible to the public. [51] With the development of the compendium, this milestone is ongoing and should be carried forward to the next action plan cycle.

Milestones 3, 4, and 5 to pass legislation enshrining public participation in government were among the most ambitious elements of this commitment. These milestones were not completed due to the supremacy battles between the Senate and the National Assembly. [52] Under milestone 3, the Public Participation Bill was passed by the Senate but has not been passed in the National Assembly. This law never saw the light of day in the recently concluded 12th Parliament. Similarly, milestone 4 to draft the Civic Education Legislation was not started. Regarding milestone 5, the Public Benefits Organization Act was passed in 2013, but has not been operationalized and remained waiting for the action of the relevant Cabinet Secretary. Definite timelines were set for its implementation but it was not adhered to. It can be carried over to the next action plan cycle.

Mzalendo Trust reported progress on milestone 6 to adopt and enhance the use of technology as an enabler of public participation. [53] Mzalendo Trust has been central to the use of mainstream and social media to broadcast parliamentary operations to the public. The Parliament of Kenya has an active YouTube channel with over 44,000 subscribers at the time of writing this report through which citizens can follow live proceedings. [54] They also have an official Twitter [55] and Facebook [56] page which have 168,000 and 71,000 followers respectively. While these numbers are small in comparison to Kenya’s population of approximately 52 million, it indicates positive steps in the right direction. The use of technology as an enabler of public participation has been a theme for Kenya since prior action plan cycles. [57]

Milestone 7 on the development of guidelines to guarantee inclusivity in public participation to include women, youth, persons with disability, minority, and marginalized communities was not started largely due to the fact that the Public Participation Bill was not implemented. [58]

With regards to the implementation of milestone 8 which sought for the institutionalization of OGP at the political and technical levels in the parliament through the speaker’s roundtable, Mzalendo Trust confirmed that there is an OGP directorate or desk at the Senate but not at the National Assembly. [59] The IRM researcher was unable to confirm that a speaker’s roundtable had been convened to describe the institutionalization of the OGP. The implementation of this milestone was hampered by the electioneering period as a majority of the expected key implementers were running for office. [60]

The parliament and its partners did not complete milestone 9 to establish five service centers to bring the parliament closer to citizens. Article 119 of the 2010 Constitution of Kenya allows anyone to petition the parliament to consider any matter within its authority to enact, amend, and repeal any legislation. [61] Service centers in remote counties would better enable citizens to petition parliament or participate in the budget process. Mzalendo Trust stated that whilst the physical service centers were not established, a lot of work was being done in the background whose impact would be seen if the milestone is carried over to the next action plan cycle. [62]

Considerable efforts should shift towards opening parliament and enhancing public participation within county assemblies. It is evident that parliamentary openness at the national level has improved over time. The same cannot be said of parliamentary processes at the county level where citizens still find it difficult to easily access information and monitor county assembly activities. Open access to parliaments at county level would bring legislators and leaders closer to the citizens and create space for effective dialogue and participation.