Public Participation (KE0021)

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

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

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.

4. Public Participation

Completion: Limited.

During the implementation period, incremental progress was made toward operationalizing the constitutional requirement for public participation across government. The proposed Public Participation Law was presented to Senate for final reading, but its enactment was hampered by a court ruling requiring the Senate and the National Assembly to comply with constitutional provisions regarding consultations with the public and between the two legislative houses. [51] This ruling affected the Public Participation Bill and 22 other legislation already enacted or tabled for consideration.

Prior to the action plan, only proceedings for the main Senate sessions and selected committees were live streamed. During the action plan period, the government moved forward to live streaming of all committees of Senate. [52]

Civil society organization Article 19 [53] supported the establishment of the OGP commitment tracker. [54] The tracker provides descriptions and milestones for each commitment and implementation progress against the set timelines. However, at the time of research, neither government nor Article 19 had posted an update since its creation in 2019.

Milestones 17 and 20 were not implemented.

The Court Users Committee (CUC) is a platform that brings together actors and users in the justice sector to enhance public participation and stakeholder engagement, develop public understanding of court operations, and promote effective justice sector partnerships. [55] The CUC guidelines were revised in 2019 [56] to provide a broader framework for engagement of state and non-state actors and, importantly, to clearly define the objectives, functions, and scope of the CUC; measures for monitoring and evaluation; and descriptions of key performance indicators.

In milestone 21, the Senate organized special visits to Kitui [57] and Kisumu Counties in September and April 2019, respectively. During the Kitui visit, dubbed Senate Mashinani, the Senate held sittings from 16 to 20 September 2019 at the Kitui County Assembly. The visit, which members of the public were invited to attend, sought to promote the work and role of the Senate and highlight existing opportunities for people to get involved, with a view of encouraging greater public engagement.