Enhance Transparency in the Legislative Process (KE0012)

Status quo or problem/issue to be addressed It is challenging for the public to access bills tabled in Parliament. Further, the notice given by the relevant Parliamentary committees for input by the public is not sufficient. In addition, public access to Parliament buildings is highly regulated due to security concerns. Parliamentary calls for memoranda and invitations to public hearings are only published in newspapers as advertisements which only about 2% of the Kenyan population have access to. It would be more effective if other media such as radio and mobile phone, which 80% of Kenyans can access, are used. There is need for improved tracking of bills including the real time changes made at various stages of the legislative process. Currently you can only track the process of the bill as opposed to the content. Brief Description of Commitment (140 character limit) Enact public participation policy and law to prescribe citizen engagement avenues, thresholds, timelines and formats in which Parliamentary information should be availed.

3. Legislative transparency in Parliament and County assemblies

Commitment Text:

Title: 3. Enhance transparency in the legislative process in Parliament and County Assembly

It is challenging for the public to access bills tabled in Parliament. Further, the notice given by the relevant Parliamentary committees for input by the public is not sufficient. In addition, public access to Parliament buildings is highly regulated due to security concerns. Parliamentary calls for memoranda and invitations to public hearings are only published in newspapers as advertisements, which only about 2% of the Kenyan population have access to. It would be more effective if other media such as radio and mobile phone, which 80% of Kenyans can access, were used. There is need for improved tracking of bills including the realtime changes made at various stages of the legislative process. Currently you can only track the process of the bill as opposed to the content.

Brief Description of Commitment

Enact public participation policy and law to prescribe citizen engagement avenues, thresholds, timelines and formats in which Parliamentary information should be availed. By availing information through technology - websites, SMS short-codes, radio and social media platforms - legislators facilitate more inclusiveness in decision-making and provide avenues for feedback.

Milestones:

3.1. Enact Public Participation legislation and policy to prescribe avenues, timelines and threshold necessary

3.2. Provide tracked copies of bills in every stage of discussion in Parliament

3.3. Adopt open-source platforms to enhance internal parliamentary and county assembly communication and also facilitate information sharing with the public

3.4. Publish weekly Senate, National Assembly, County Assembly plenary and committees proceedings

3.5. Facilitate citizen engagement with Parliament and County Assembly via alternative media

3.6. Increase Parliament’s participation in the Legislative Openness working group

Responsible institutions: Parliament Service Commission; County Assemblies; Department of Justice; Legislative & Intergovernmental Liaison Office (LILO); and National Council for Law Reporting

Supporting institutions: County Governments, Presidency Mzalendo Trust, Parliamentary Initiatives Network, Kenya – Network of CSOs. Ushahidi

Start date: 1 July 2016

End date: 30 June 2018

Editorial Note: This commitment text has been abridged for brevity. For full text, see Kenya’s National Action Plan 2016–18, https://www.opengovpartnership.org/wp-content/uploads/2001/01/Kenya_AP2_2016_0.pdf.

Context and Objectives

The legislative and budgeting process in Kenya has a history of secrecy and excluding civic participation. With the promulgation of the 2010 constitution,^{[Note78: Kenya Constitution (2010) http://www.kenyalaw.org/Downloads/The%20Constitution%20of%20Kenya.pdf.] public participation became a crucial pillar of the Constitution. Article 118 (b) of the Constitution, read together with the Public Finance and Management Act and the Public Procurement Act, requires public participation and involvement in all areas of governance, including the legislative process, the budget process, and the procurement process. This commitment seeks to provide citizens with more opportunities to review draft legislation and provide input on public policy development and implementation. However as written, the commitment could be better defined and wider in scope to realize transformative changes. Therefore, overall the commitment’s potential impact is considered moderate.}

3.1. Enact public participation legislation and policy

This milestone focuses on implementing legislation to expand the public participation framework. As written, the text does not clarify whether these steps will bolster already existing regulations for guaranteeing public participation in the law-making process, or if it will pass new legislation to strengthen this policy area. The aims include developing citizen engagement mediums and timelines to enable public involvement in legislative decision-making. This milestone does not specify how it will be carried out and enforced. Due to the ambiguity regarding whether it will enforce existing rules or will develop new ones, the potential impact is minor, as it is unclear how the activities will move government practice beyond the current baseline.

3.2. Provide tracked copies of bills in every stage of discussion in Parliament

The milestone seeks to address the challenge of public access to tracked copies of bills tabled in Parliament (both National Assembly and Senate) due to the required user fees. CSOs noted that even the lead online publisher of laws in Kenya, Kenya Law^{[Note79: Kenya Law (accessed 21 Feb. 2018) kenyalaw.org/kl/. ]} goes through the process of purchasing bills from the Government Press and cannot access them before the government printer makes them available. The Senate lacks sufficient capacity to disclose and publish the Senate committees’ Hansard (the official report and minutes of parliamentary proceedings) to ensure all discussions around bills are captured. There is a need for improved bill tracking, including the real-time changes made at various stages of the legislative process. Allowing the public to track changes to the bills as they move through the drafting process is relevant to access to information, and it could transform the way citizens follow development of legislation.

3.3. Adopt open-source platforms to enhance internal parliamentary and county assembly communication and also facilitate information sharing with the public

This milestone seeks to address the challenge of information sharing and feedback from parliament and county assemblies. Currently, Parliamentary committees give insufficient notice for public input. Developing an open source platform and utilising alternative ways to give citizens adequate notice and opportunities to provide feedback could improve civic engagement in Kenya. However, this commitment includes aspirational language that does not provide clear steps, plans, or activities that could be taken to implement such changes; therefore, the potential impact is minor.

3.4. Publish weekly Senate, National Assembly, County Assembly plenary and committees’ proceedings

The milestone seeks to ensure the publication of the respective Hansards from the Senate, National Assembly, and County Assembly plenary and committee proceedings. This is an ongoing practice as the Hansard is available through the parliamentary website and county websites. This milestone will not change any government practice and therefore its potential impact will be none as it maintains the status quo.

3.5. Facilitate citizen engagement with Parliament and County Assembly via alternative media

The milestone seeks to promote local and national government’s use of alternative media such as web portals and social media like YouTube. By using technology, Parliament and County Assemblies could use new tools to open their legislative data and increase citizen understanding of the legislative process. It is coded as relevant to access to information, and technology and innovation. This commitment is vague with low specificity, and therefore the potential impact is minor because it is not clear which new media will be used and how. In addition, the government already uses media such as YouTube or Twitter to provide information. Such platforms are not generally for gathering public feedback, and as written are not clearly relevant to civic participation.

3.6. Increase Parliament’s participation in the Legislative Openness^{[Note80: Open Government Partnership, 'Working Group: Legislative Openness - About' (Washington, DC: OGP, 2018) https://www.opengovpartnership.org/about/working-groups/legislative-openness-0. ]} working group

Currently, Parliament participates actively in the OGP Legislative Openness working group through legislators including Hon. Johnson Sakaja, Hon. Agnes Zani and Hon. Jessica Mbalu. The working group aims to promote peer learning and provide technical support to help OGP-participating governments implement their commitments. The Legislative Openness Working Group focuses on deepening the exchange of knowledge across governments, parliaments, civil society and international institutions regarding the opportunities and challenges associated with opening the legislative process.^{[Note81: Open Government Partnership, 'Working Group: Legislative Openness - Governance' (Washington, DC: OGP, 2018) https://www.opengovpartnership.org/about/working-groups/legislative-openness/governance.]} This milestone seeks to increase participation from the whole House to be part of this working group to ensure legislative engagement in open government reform efforts. However, this participation is related to internal government processes and does not directly increase opportunities for citizens to engage with government. It is therefore of unclear relevance to OGP values.

Completion

3.1. Enact Public Participation legislation and policy – Limited

A stand-alone public participation legislation and policy has yet to be enacted. However, a number of laws have provisions on public participation, including the Constitution. During the first Senate,^{[Note82: Public Participation Bill, 2016 (Senate Bills, 2016) http://www.parliament.go.ke/the-senate/house-business/senate-bills/item/3460-public-participation-bill-2016.]} a Bill on public participation was published on 25 November 2016^{[Note83: Kenya Gazette Supplement No. 175 (Senate Bills No. 15) (Nairobi: The Government Printer, 8 Nov. 2016) kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2016/PublicParticipationBill_2016.pdf.]} and it went through the first reading. It provides a general framework for effective public participation to give effect to the constitutional principles of democracy and constitutional provisions for participation of the people. However, it lapsed as the Senate recessed for the August 2017 elections. The Institute for Social Accountability, in close collaboration with the county government of Nairobi, developed a model public participation law and organised meetings to discuss public participation, including a conversation about the Nairobi County Proposed Public Participation Policy, held on 13 June 2017 at the Basketball Court in Nyayo National Stadium.

3.2. Provide tracked copies of bills in every stage of discussion in Parliament – Complete

The National Assembly and Senate, in close collaboration with a Kenyan based civil society, Mzalendo Trust,^{[Note84: Mzalendo Trust, a non-partisan organisation, monitors the Kenyan Parliament with a mission to facilitate public participation in Parliamentary processes through information sharing, research and networking.] developed a web-based platform called Dokeza,[Note85: Dokeza, 'Home' (Mzalendo, 2018) https://dokeza.mzalendo.com.] which is Swahili for 'share your idea.' It is an annotated bill tracker that not only tracks the stage at which a bill is at, but tracks the amendments and the justification for amendments offered at each stage of a law’s development. Dokeza offers an option for providing public comments on specific bills being drafted and gives information on public hearings to be held. Dokeza has been endorsed by Parliament, both the National Assembly and the Senate, as an innovative platform.[Note86: Traditionally, Parliament advertises calls for memoranda in leading newspapers (mostly Nation and The Standard) and give Kenyans a maximum of six days to submit their views through written memoranda to Parliament. Outreach through newspapers is mandated by the law but it has limited reach as only about 500,000 Kenyans regularly buy these papers, therefore there is low to no participation.}

Dokeza seeks to: empower the public to voice their opinions whether as individuals or informal communities of interest or practice; enable organisations in Nairobi and other parts of the country to collate public opinion and draft memoranda within the stringent timelines Parliament gives; serve as a repository of public commentary on various calls for memoranda; provide Members of Parliament and government institutions an opportunity to practice open stakeholder management in drafting a bill or during its public participation phase; test the access to information law by encouraging Parliament, the National Council for Law Reporting, the Kenya Law Reforms Commission, Attorney General and Government Printers to make legislative information accessible to the public within sensible timelines and in formats that are user friendly.] The platform strives to make bills under the public participation phase interactive so that lawmakers may interact with citizens to improve bills that are up for discussion. However, County Assemblies do not have a similar platform. Counties use their websites to publish the county bills, but they cannot be tracked over the stages of development. Therefore, there is room for further improvement at the local government level.

3.3. Adopt open-source platforms to enhance internal parliamentary and county assembly communication and also facilitate information sharing with the public – Limited

Both Parliament and County Assemblies have yet to adopt open-source platforms to enhance communication with the public. The Senate Liaison Office, under the Office of the Speaker, states it is working to establish an information-sharing framework with the assemblies coordinated between the county liaison officers across the 47 county assemblies, though evidence of progress is not publicly available. According to a government respondent, the Parliament website is to be revamped to provide a platform to share information with the public, enhance greater engagement and provide instant feedback through a live chat tool with the public and CSOs regarding legislative business.

3.4. Publish weekly Senate, National Assembly, County Assembly plenary and committee proceedings – Substantial

The Senate^{[Note87: Parliament of Kenya 'Hansard – The Senate' (accessed 21 Feb. 2018) http://www.parliament.go.ke/index.php/the-senate/house-business/hansard. ] and National Assembly,[Note88: Parliament of Kenya 'Hansard – The National Assembly' (accessed 21 Feb. 2018) http://www.parliament.go.ke/index.php/the-national-assembly/house-business/hansard. ] have continued publishing their weekly Hansard. Weekly plenary proceedings continue to be published on the Parliament website the day following each sitting. The revamped website will eventually enable committees to broadcast their proceedings as well, but this step has not been started. At the county level, County Assemblies publish their weekly County Assembly plenary and committees’ proceedings. Some of the counties that publish include Elgeyo Marakwet.[Note89: The County Assembly of Elgeyo-Marakwet, 'Hansard' (accessed 21 Feb. 2018) http://www.emca.or.ke/hansard/.] This county is on its own a participant of the OGP subnational pilot program and is implementing its own action plan with five commitments.[Note90: Open Government Partnership, 'Elgeyo Marakwet, Kenya' (Washington DC: OGP 2018) https://www.opengovpartnership.org/countries/elgeyo-marakwet-kenya. ]}

3.5. Facilitate citizen engagement with Parliament and County Assembly via alternative media – Complete

Parliament and some County Assemblies have set up interactive websites and social media accounts as a means of citizen engagement. Parliament currently uses social media to engage the public through Twitter^{[Note91: 'The National Assembly of Kenya' (Twitter, accessed 21 Feb. 2018) https://twitter.com/NAssemblyKE.] and Facebook.[Note92: 'Parliament of Kenya' (Facebook, accessed 21 Feb. 2018) https://www.facebook.com/ParliamentKE/.] Recently, Parliament activated a YouTube[Note93: 'Parliament of Kenya' (YouTube, accessed 21 Feb. 2018) https://www.youtube.com/channel/UCXuseB7juWB7DIgTJcwtHFQ. ] account whereby the public can view parliamentary proceedings. However, this has yet to gain popularity. As of this report, the YouTube account had 323 subscribers with 545 views in a country of approximately 50 million people according to UN estimates. There may be a need to popularise alternative media as a mode for citizen engagement with Parliament and County Assemblies.}

3.6. Increase Parliament’s participation in the Legislative Openness working group – Limited

Parliament has participated in some meetings in the OGP legislative openness working group. However, there may be need for a more coordinated approach to be taken within Parliament to ensure consistent participation in the working group.

Early Results

The annotated bill tracker platform, 'Dokeza,' is a useful tool to track bills at each stage of discussion and to offer an opportunity for the public to give their input. This platform makes bills under the public participation phase available and interpreted by an expert to make the law easily understandable. Kenyans then have a chance to give their views in the various sections of the bill and even share their input on social media. The platform currently has an up-to-date list of bills that can be tracked.^{[Note94: Dokeza, 'Home.' ]}

Next Steps

The commitment on legislative openness is timely and relevant to enhance public participation in law-making. The next action plan can extend the scope of the current plan to provide clear and measurable commitments for parliamentary openness.

· There is need to institutionalise the positive progress on the bill tracking annotation tool developed by Mzalendo Trust within the government to ensure sustainability and that the portal is hosted within Parliament’s website and regularly updated.

· Counties should progressively set aside funds to ensure an adequate budget for maintaining the bill tracking annotation tool.

· Although a legal framework for participation at the county level exists, there are insufficient resources and incentives for county officials to ensure this participation is meaningful. Also, participatory frameworks should address gaps that still exist at the county level, in particular, strengthening existing formal regulations (e.g. penalising counties that don’t comply) or finding other ways to incentivise and support these participatory spaces.

3. Legislative Transparency in Parliament and County Assemblies

Commitment Text:

Title: 3. Enhance transparency in the legislative process in Parliament and County Assembly.

It is challenging for the public to access bills tabled in Parliament. Further, the notice given by the relevant Parliamentary committees for input by the public is not sufficient. In addition, public access to Parliament buildings is highly regulated due to security concerns. Parliamentary calls for memoranda and invitations to public hearings are only published in newspapers as advertisements, which only about 2% of the Kenyan population have access to. It would be more effective if other media such as radio and mobile phone, which 80% of Kenyans can access, were used. There is need for improved tracking of bills including the realtime changes made at various stages of the legislative process. Currently you can only track the process of the bill as opposed to the content.

Brief Description of Commitment

Enact public participation policy and law to prescribe citizen engagement avenues, thresholds, timelines and formats in which Parliamentary information should be availed. By availing information through technology - websites, SMS short-codes, radio and social media platforms - legislators facilitate more inclusiveness in decision-making and provide avenues for feedback.

Milestones:

1. Enact Public Participation legislation and policy to prescribe avenues, timelines and threshold necessary
2. Provide tracked copies of bills in every stage of discussion in Parliament
3. Adopt open-source platforms to enhance internal parliamentary and county assembly communication and also facilitate information sharing with the public
4. Publish weekly Senate, National Assembly, County Assembly plenary and committees proceedings
5. Facilitate citizen engagement with Parliament and County Assembly via alternative media
6. Increase Parliament’s participation in the Legislative Openness working group

Responsible Institutions: Parliament Service Commission; County Assemblies; Department of Justice; Legislative & Intergovernmental Liaison Office (LILO); and National Council for Law Reporting

Supporting Institutions: County Governments, Presidency Mzalendo Trust, Parliamentary Initiatives Network, Kenya – Network of CSOs. Ushahidi

Start Date: 1 July 2016

End Date: 30 June 2018

Editorial Note: This commitment text has been abridged for brevity. For full text, see national action plan 2016–18: https://www.opengovpartnership.org/sites/default/files/Kenya_AP2_2016_0.pdf.

Commitment Aim

Article 118 (b) of the Kenyan Constitution requires public participation and involvement in all areas of governance. [41] This commitment aimed to provide citizens with more opportunities to review draft legislation and to provide input on development and implementation of public policy.

Status

Midterm: Substantial

By the midterm, the overall status of completion of this commitment was substantial. It remained unclear whether Milestone 3.1 required the better implementation of existing laws on public participation or the development and enactment of new policies and laws. At the start of the commitment period, the Ministry of Devolution and Planning & Council of Governors had already published County Public Participation Guidelines. [42] While various initiatives were started (e.g. a Senate reading on a new public participation bill in November 2016 and a stakeholder consultation on the Nairobi County Proposed Participation Policy), none were completed by the midterm.

Building on collaboration with a member of the Kenyan Parliament that had resulted in successful civic participation on the National Youth Employment Authority Bill, [43] the parliamentary-watchdog CSO Mzalendo launched the Dokeza platform in April 2017. [44] This CSO-led initiative is relevant to Milestones 3.2, 3.3, and 3.5, as it enables any person to access bills before the Senate and the National Assembly, indicates when bills are “open for memoranda” (i.e. for public comment), allows for registered users to post comments, and provides explanatory notes on bills, where deemed necessary. [45] Ms. Jessica Musila, Chief Director of Mzalendo, affirmed that the CSO procured the opinion of a variety of government stakeholders in developing Dokeza, and that it was supported by both Houses of Parliament. [46] The civic participation element of the Dokeza platform also relies on an SMS-service called “Bonga-na-Mzalendo,” which entails forwarding a simple question distilled from current legislative reforms to a database of users who can respond via SMS, [47] and dissemination of information via Twitter. However, a similar platform was not developed for County Assemblies.

The Senate and National Assembly continued publishing their weekly Hansard (the official report and minutes of parliamentary proceedings) on the Parliament website (Milestone 3.4), but government-based open source platforms (Milestone 3.3) were not adopted at either the national or county levels. Parliament continued using social media like Facebook and Twitter to engage the public (Milestone 3.5) and participated in some meetings for the legislative openness working group (Milestone 3.6). For more information, please see the 2016–2018 IRM progress report. [48]

End of Term: Substantial

By the end term, this commitment remained substantially implemented. A new Senate Public Participation Bill was published on 5 March 2018 (Milestone 3.1). [49] The Bill aims to provide a general framework for public participation to give effect to the principles of democracy and participation in the Kenyan Constitution. The Bill enshrines general principles of public participation [50] and further envisages that a range of responsible authorities will develop more detailed guidelines on public participation for their respective institutions. [51] The general principles, for example, include guarantees of equitable access to information; and the right of the public, communities and organizations affected by a decision to be consulted and involved in the decision-making process. Until a responsible authority has developed more specific public participation guidelines for the respective public sector institution, the general guidelines set out in the Bill apply. [52] The Bill envisages that each responsible authority will prepare and publish an annual report on public participation activities and outcomes. [53] By the close of the commitment period, the Bill had made no further progress in the Kenyan Parliament beyond its introduction in the Senate.

Although affected by the lull in legislative activity that ensued during and after Kenya’s protracted and problematic 2017 elections, [54] the Dokeza site remained functional in the latter half of the commitment period (Milestones 3.2, 3.3, and 3.5). A total of 24 Senate and National Assembly bills dating from 2018 and 2019 were published on the site for public access and comment. [55] The same bills were published on the website of the Parliament of Kenya, with a functionality to submit comments. [56] The bill-tracking functions on both platforms, however, are not operational. The modes of civic engagement around the Dokeza platform (publication of bills, Youtube videos, SMS service, and Twitter handles) aim to promote civic participation. For example, the Mental Health (Amendment) Bill, 2018 was published on the Dokeza platform and received 11 online comments. [57] A video of the Senator speaking on the Bill posted on Youtube received 100 likes; 168 people responded via SMS to a question relating to the Bill; and two twitter hashtags on the Bill achieved about 86,000 and 18,000 impressions, respectively. [58]

No further progress was made in respect of Milestones 3.4 and 3.6.

Did It Open Government?

Access to Information: Marginal

Civic Participation: Marginal

In Kenya, public participation is already constitutionally-enshrined and requires compliance even in the absence of enabling legislation. This commitment sought to enhance transparency in both parliamentary and county legislative processes. It is relevant to the OGP values of access to information and public participation. Prior to the commitment, Kenyans had to purchase bills from the Government Printer and could not access them before the government made them available. The periods given for public comment were very short, and the public did not know when the period for commentary was open. [59]

Progress on the milestones under this commitment have led to a marginal improvement in both access to information and civic participation. Some activities were completed before the start of the action plan (such as Milestone 3.5), but others have shown progress. Although a general-enabling public participation law has yet to be enacted, a new Public Participation Bill was introduced in the Senate. Bills are also accessible on the site of both the Kenyan Parliament and through the Dokeza platform. The Dokeza platform more clearly indicates when a bill is “open for memoranda,” and its integrated modes of stimulating civic participation on legislative processes have had some positive results.

However, although a legal framework for participation at the county level exists, there are insufficient resources and incentives for county officials to ensure meaningful participation. Therefore, counties could set aside funds to ensure an adequate budget for maintaining the bill-tracking annotation tool. Also, participatory frameworks could address gaps that still exist at the county level, in particular, strengthening existing formal regulations (e.g. penalizing counties that do not comply) or finding other ways to incentivize and support these participatory spaces.

Carried Forward?

This commitment has not been carried forward to Kenya’s next action plan.