Since the commencement of the Kenyan Constitution 2010, public participation has been a mantra in most governance and development spaces. The supreme law of the land describes public participation as one of the national values and principles of governance. In a democratic society like Kenya, public participation ought to be a natural part of all governance processes. However, this is not always the case. Most public participation appears more of a formality to “tick the box” and cannot be termed meaningful.
The County Government Act, requires County governments to consider the minorities and marginalized in public participation at the county level, offer timely access to information and documents prior to the actual engagement as well as consider the role of non-state actors. In addition, the Act has set out an obligation for each Governor to submit an annual report to their County Assembly on public participation in the affairs of the County government. A recent study report released by the Ethics and Anti-Corruption Commission and the United Nations Office on Drugs and Crime (UNODC) confirms that the requirement to report on citizen participation at the county level may have long been ignored. In the report, Corruption and Unethical Conduct in the Kenyan healthcare projects- Study of Procurement and Financial Management Practices in 25 counties, 78.7% of members of the public denied being actively engaged in “planning and execution of health care projects.” It was also noted that corruption was less in counties that held meaningful public participation.
At the national level, the Finance Bill 2023 has caused an uproar due to the draconian provisions contained therein. While public participation was ongoing through different fora, the political class recklessly made comments that could undermine public participation and cause more apathy. It has unfortunately been noted that government promises made in public and through the media do not always reflect the same on paper. A clear example was the promise to lower NHIF (National Hospital Insurance Fund) contributions to Ksh 300 which was widely appreciated as a much-awaited move to improve the NHIF retention rate from the current 44% and enable more Kenyans to access healthcare. When the NHIF Act Regulations 2023 were published for submissions of comments from the public, some of the provisions were not as Mwanainchi friendly as anticipated. This portends a challenge to citizens’ rights and calls for vigilance on the part of the public to ensure the government does not use public participation as a “rubber stamp”.
It is about time citizens fully embraced Article 3 obligating everyone to respect, uphold and defend the Constitution. This on the part of duty bearers means availing information in a timely and accessible manner, conducting civic education, especially on technical laws and policies such as the Finance Bill, capturing, and including citizens’ concerns or views to ensure inclusion and enhanced legitimacy of policies, laws and regulations, transparency, and accountability in implementation of projects and adherence to the rule of law in all matters governance.
On the rights holders’ side, it entails being vigilant in public participation including reading through the policy proposals, sharing the information to communities, and submitting comments not just orally but in written form. While oral submissions are important, written submissions offer a better basis for reference not only for the duty bearers but also for the citizens in case need arises, for public interest litigation.
Once citizens are engaged from the onset of the budget cycle for instance, or any other development process, accountability becomes easier as citizens and agencies charged with this mandate, are able to track expenditure vis a vis the budget and ask pertinent questions thus possibly preventing the perennial systemic fiscal discrepancies that threatens to stall the Kenyan economy.
Zaina Kombo is a human rights lawyer and the Inequalities and Discrimination Campaign Manager at Amnesty International Kenya. She writes in her personal capacity. Email: [email protected]