| PART I – PRELIMINARY | |
| Clause 2 | “public participation” means the process of involving the public in making or implementing public policy decisions including the enactment of the legislation | This definition is clear. It captures the core purpose of public participation which is involving citizens in decisions that affect them, including the making of laws. The reference to both making and implementing policy decisions is particularly valuable, as it extends participation beyond initial decision making to include how policies are carried out in practice. This broadens the scope of public engagement and recognises that implementation is as important as formulation. |
| Interpretation | “responsible authority” means the person responsible for public participation in the institutions set out under section 6; and | This definition complements Clause 6, which lists specific office holders responsible for public participation across various institutions. This definition ties responsibility to identifiable individuals and eliminates ambiguity about who is accountable for conducting public participation. This personal accountability is a significant strength because it means that citizens know exactly who to hold responsible if participation is inadequate or non existent. |
| “specific guidelines” means the specific public participation guidelines developed by a responsible authority under section 16 | This definition anticipates that different institutions may need to tailor public participation to their unique contexts. A general or “one size fits all” approach would be impractical as what works for Parliament may not necessarily work for a County Assembly or a State Department. Allowing for the development of specific guidelines grants institutions autonomy and flexibility to design processes that suit their mandate, resources, and the communities they serve. |
| Clause 3 | The object of this Act is to enhance, promote and facilitate participation of the people in governance as provided for in Articles 10 (2), 69 (1) (d) , 118, 184 (1) (c), 196, 201 (a) and 232 (1) (d) of the Constitution. | This aligns the Act with constitutional provisions, reinforcing the importance of public participation in governance. |
| Object of the Act | | |
| Clause 4 | This Act applies to responsible authorities and the public with respect to public participation exercises. | The clause extends the reach of the proposed Act to all levels of Government. This is a significant step toward institutionalising public participation. It ensures that both National and County Governments are bound by the same standards. |
| Application of the Act | A responsible authority shall facilitate public participation on matters relating to; | |
| a) Formulation and implementation of public policies |
| b) Law making processes; or |
| c) Any other matter as may be required by legislation |
| Clause 5 | A responsible authority undertaking public participation exercise under this act shall be guided by the principles that; | These principles strike a balance between meaningful participation and practical governance. They recognise that participation must be tailored to the context and that public resources must be used responsibly. |
| Principles of public participation | a) public participation may be conducted through written submissions, oral hearings, online forums or any other method deemed appropriate to the context | |
| b) the public shall be afforded a reasonable chance to express their views; |
| c) the scope, depth and duration of a public participation exercise shall be commensurate with the complexity, significance and potential impact of the matter under consideration; and |
| PART II – RESPONSIBLE AUTHORITIES | |
| Clause 6 | The responsible authorities for the purposes of this Act shall be; | This clause is particularly useful as it assigns clear accountability to specific office holders. It leaves no doubt about who is responsible for ensuring public participation in each institution. |
| Responsible Authorities in public participation | (a) in the case of Parliament, the Clerk of the relevant House; |
| (b) in the case of the Judiciary, the Chief Registrar of the Judiciary |
| (c) in the case of the Office of the Attorney-General the Attorney-General |
| (d) in the case of the Office of the Director of Public Prosecutions the Director of Public Prosecutions |
| (e) in the case of a State Department, the relevant Principal Secretary |
| (f) in the case of a Constitutional Commission or an Independent Office the Secretary or the Chier Executive Officer |
| (g) in the case of a State corporation, the Chief Executive Officer |
| (h) in the case of a county assembly, the Clerk of the county assembly. |
| (i) in the case of a county executive, the county Governor: and |
| (j) in any other case, the person or entity making or implementing a public policy decision. |
| PART III – GENERAL GUIDELINES FOR PUBLIC PARTICIPATION |
| Clause 7 | A responsible authority shall in undertaking public participation, consider- | The list of considerations is comprehensive. It requires responsible authorities to think holistically about the design of participation exercises. Factors such as inclusivity, accessibility, and transparency are particularly important and reflect constitutional values. |
| Considerations in undertaking public participation | a) the nature of the matter under consideration | |
| b) the urgency of the matter under considerations | We propose that to guard against potential misuse, any decision to limit participation based on urgency or resource constraints should be required to be documented in writing with reasons. |
| c) the impact of the matter on the public; | |
| d) the need for inclusive and effective representation | When undertaking public participation, public authorities should consider the subject matter of the proposed law or policy. The threshold for what constitutes adequate participation can be viewed through the lens of the rights being protected or limited. |
| e) the number of persons likely to be affected; |
| f) the ability of the members of the public to access the necessary information and the public participation forum: |
| g) the integrity and transparency of the process: |
| h) the financial and human resources available, and | It is to be recalled that in British American Tobacco Kenya PLC (Formerly British American Tobacco Kenya Limited) v Ministry of Health & 2 others; Kenya Tobacco Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party); Kariuki, Ndegwa & Kubuthu (Applying as Secretary, Chairperson & Treasurer of Kiambu County Welfare Association) & 6 others (Interveners) [2024] KESC 68 (KLR) the Supreme Court held that although strict adherence to public participation procedures is crucial, this should not be interpreted to mean that a failure to incorporate every public suggestion renders a decision or process invalid. The focus ought to remain on whether the process was reasonable and meaningful in line with Article 10 of the Constitution, and not whether the outcome aligns with the views of any particular interest group. |
| i) any other relevant considerations. |
| Clause 8 | 1) A responsible authority shall before undertaking a public participation exercise, notify the public of the exercise. | Notice is the foundation of any participation exercise, it ensures that the public is informed and can prepare to engage. |
| Notice for public participation | 2) notice under subsection (1) shall include the venue, date, time and mode of the public participation exercise. | We propose that the Bill could prescribe a minimum notice period for instance, thirty (30) days for significant matters while allowing for shorter periods in genuine emergencies with justification. |
| Clause 9 | A responsible authority may notify the public of the public participation exercise through; | This clause is a good proposal as it embraces modern and traditional communication channels. This clause recognises the diversity of the Kenyan public and the need to reach people through multiple platforms. |
| Modes of notifying the public | a) electronic media including television, radio stations, internet or mobile phones: | We propose that to maximise reach to the public, responsible authorities could also be encouraged to use community-based channels such as chiefs' barazas particularly in rural and marginalised areas. |
| b) official websites and social media platforms: | The multiple modes of awareness accords with the decision of the Court of Appeal in Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] KECA 459 (KLR) where the Court nullified the Kiambu Finance Act because of lack of adequate public participation. The Court held that notices published only in the Kenya Gazette are insufficient, and that notices should be published on public notice boards and community radio stations especially in rural areas – more so if most of the public reside in rural areas. The Court also disapproved of the use of venues that are inaccessible to the public whether geographically or economically to the majority of the affected public unless a specific justification is provided. |
| c) public meetings. |
| d) public notice boards or |
| e) print media. |
| (2) A public participation notice under sub-section (1) shall state; |
| a) the subject matter of the public participation: |
| b) the duration of the public participation exercise, and |
| c) whether submissions may be made orally, in writing or both |
| Clause 10 | The submissions at a public participation exercise may be made; | The flexibility offered by this clause is commendable. It accommodates different preferences and abilities, making participation more accessible. |
| Submissions during public participation | a) in writing by way of memoranda or letters; | We propose that to ensure that oral submissions are given due weight, responsible authorities could be required to record and transcribe them, and to consider them equally alongside written submissions. |
| b) orally; |
| c) through online platforms; or |
| d) at public hearings, workshops, seminars and conferences. |
| Clause 11 | A responsible authority shall allow reasonable time for the public to make submissions during a public participation process. | This clause safeguards the public's right to adequate submission time. It is a protective provision that prevents rushed exercises. |
| Reasonable time | | |
| Clause12 | A responsible authority shall publish the outcome of the public participation exercise | Transparency and accountability are at the heart of this clause. Requiring the publication of outcomes ensures that the public sees the impact of their participation. |
| Processing of responses | | |
| Clause 13 | A responsible authority shall ensure that the public has access to the public participation process and the opportunity to give views on the matter under consideration | This clause promotes inclusivity by addressing language barriers, which is a significant step forward. It recognises Kenya's linguistic diversity. |
| Access to public participation process | Where a responsible authority holds a public hearing and the participants are not conversant with English or Kiswahili language, the responsible authority shall take measures to conduct the exercise in a language that the participants understand. | Building on this foundation, we propose that the clause be expanded to include accessibility for persons with disabilities, such as sign language interpretation, braille materials, and accessible venues, in line with Article 54 of the Constitution. |
| Clause 14 | A responsible authority shall facilitate the public with access to documents relating to the matter under consideration in the public participation exercise | Informed participation depends on access to information, this proposal ensures that the public is empowered to engage meaningfully with the issues at hand. |
| We propose that this clause prescribe a set timeline within which the responsible authorities are required to release documents. |
| Access to documents | | |
| | The responsible authorities could be mandated to provide access to the documents at least seven (7) days before the public participation exercise. |
| | |
| | We further propose that the documents be made accessible in user friendly formats such as braille, audio, or simplified summaries where needed. |
| Clause 15 | A person who attends a public participation forum shall be courteous, respectful and civil. | This clause promotes a constructive and orderly environment for public participation. It encourages mutual respect between the public and authorities. |
| A responsible authority shall facilitate the maintenance of order during the conduct of public participation | |
| Conduct in a forum of public participation | | |
| PART IV – SPECIFIC GUIDELINES FOR PUBLIC PARTICIPATION | |
| A responsible authority may develop specific guidelines for the conduct of public participation by the respective institution | This clause grants institutions the flexibility to tailor public participation to their unique contexts. This clause is valuable as it recognises that one size does not fit all. |
| Clause 16 | | |
| Development of specific guidelines for public participation | The specific guidelines on public participation developed by a responsible authority shall comply with the general guidelines set out in Part III of this Act | |
| Clause 17 | A responsible authority shall publish in the Gazette, the specific guidelines on public participation developed pursuant to section 16: | Gazettement gives the guidelines legal recognition and ensures that the public is properly notified. |
| Publication of specific public participation guidelines | Provided that in the case of Parliament and County Assemblies, such guidelines shall be incorporated in the Standing Orders of the respective House of Parliament or County Assembly. | In addition to the Gazette, we propose that the guidelines could also be published in newspapers of nationwide circulation. |
| | This proposal ensures that the specific guidelines on public participation are part and parcel of the written rules and procedures in parliament and county assemblies. This valuable in ensuring compliance. |
| Clause 18 | Pursuant to Article 118(1) of the Constitution, Public Parliament shall- | This clause promotes efficiency by avoiding duplication of public participation. It recognises the practical demands of legislative work. |
| Public participation by parliament | a) conduct its business in an open manner and its sittings and those of its committees shall he open to the public; and | |
| b) facilitate public participation and involvement in the legislative and other business of Parliament and its committees. |
| Where a committee of one House of Parliament has conducted public participation on a Bill, a committee of the other House of Parliament may- |
| a) rely on the report tabled by the Committee of the originating House: or |
| b) seek additional views on the Bill with respect to substantive amendments made to the Bill during its consideration. |
| A committee of the originating House may hold a joint public participation exercise with the corresponding committee of the other House with respect to a Bill originating from the Party forming the National Government |
| A committee of a House of Parliament may take measures to avoid duplicating public participation conducted by a committee of the originating House |
| PART V – MISCELLANEOUS PROVISIONS | |
| Clause 19 | A responsible authority undertaking public participation under this Act shall not disclose information protected under section 6 of the Access to Information Act, sections 48 and 49 of the Kenya Defences Forces Act or any other written law. | This clause strikes a balance between transparency, the limitation of access to information and the right to privacy. It acknowledges that some matters, such as national security require confidentiality. |
| Certain information not to be disclosed | A responsible authority processing personal data under this Act shall comply with the Data Protection Act | |
| Clause 20 | A responsible authority who, in conducting public participation, wilfully fails to adhere to the principles and guidelines set out under this Act commits an offence and shall be liable, upon conviction, to a fine not exceeding five hundred thousand shillings. | This penalty provision serves as an important accountability mechanism within the Bill. Imposing a financial consequence for non-compliance signals that public participation is not merely a procedural formality but a legal obligation that must be taken seriously. |
| General Penalty | | The fine of up to five hundred thousand shillings is substantial enough to deter responsible authorities from wilfully ignoring their duties under the Act. |
| Clause 21 | A public participation exercise in progress at the commencement of this Act shall proceed so far as possible in accordance with Act | This clause ensures a smooth transition by allowing ongoing processes to continue without disruption. It recognises the practical challenges of abruptly changing course mid process. |
| Transitional Provision | | |
