Public Participation, Legislative and Fiscal Openness (KE0037)

Brief Description of the Commitment

The commitment broadly aims to enhance transparency, inclusion, public participation, and accountability in legislative, debt, and budget processes, with a view of building open and trusting relations between lawmakers and citizens at both national and county levels.

Problem Definition

Public participation and access to information are central tenets provided in the Constitution as means of enhancing transparency, accountability, and inclusion. Whilst this has been implemented, public participation remains problematic, without a defined framework for ensuring its meaningfulness. Timelines given are usually too short, there is no mechanism to confirm that public input has been considered into the bills, and it is not possible to disaggregate public participation data in terms of different demographics such as gender/age/region. Additionally, information shared for public participation at both levels of government is usually complex and bulky. The process is also more consultative and not collaborative as people do not really shape the conservation and there is no feedback mechanism stipulated. On the issues of fiscal transparency, the public debt process has been opaque, with Parliament’s role being bypassed and with minimal participation from stakeholders. The commitment seeks to strengthen the role of Parliament in the process as well as provide for public participation and robust citizen engagement in the process, including ensuring that public debt is always considered in the budget process. Finally, the commitment seeks to make government agencies simplify the information and documents being shared to enhance broader stakeholder engagement through the use of plain text as well as inclusive language, as well as automation of processes, including on digital platforms. The commitment seeks to address these challenges going beyond public participation to also enhance public oversight and accountability, especially around public debts and budgets.

What are the causes of the problem?

● Lack of national legislation that facilitates a meaningful public participation framework. ● Violation of the law that stipulates mechanisms to engage the public through Parliament in the acquisition and use of public debt. ● Minimum proactive sharing of information on public debt including to Parliament leading to opaqueness. ● Lack of proper framework on debt management that includes the short- and long-term impact of debt to various segments of the population such as Special Interests Groups. ● There is a requirement to operationalize the PBO Act, 2013 to safeguard the civic space and the working environment for Civil Society Organizations. ● Lack of ownership of public participation commitments by different government agencies ● Lack of adequate resources to implement the commitments.

Commitment Description

Creation of the necessary legislative framework for public participation is at the core of realizing meaningful public participation. During the last Action Plan, attempts were made to enact a Public Participation Law but this did not succeed. Automation of legislative processes including the development of a petition tracker was also achieved but this has not resulted into effective consideration of the same. On the issue of Fiscal Transparency, increased civil society agitation on the need for public debt transparency brought the issues to the fore of national discourse. The propose milestones under NAP V will therefore be aimed at leveraging on this background whilst aiming for more ambitious and innovative means of enhancing legislative and fiscal transparency. The Commitment will further leverage on the renewed efforts at enacting a public participation law, establishment of a Public Dand Privation Committee and renewed Civil Society efforts to entrench fiscal transparency.

Proposed Solutions

This commitment aims to significantly expand transparency, accountability, and participatory mechanisms in governance processes and public finance management through comprehensive legislative and policy changes. It builds upon previous initiatives but goes further in scope and depth. Some key solutions proposed include legislated requirements for open public hearings on government loans, frameworks enabling citizens to provide direct input into legislation and budgets, publishing documents in accessible plain language, developing online public consultation portals, strengthened public debt oversight bodies, and empowering the Parliamentary Budget Office to produce alternative budget proposals.

Desired Results

The expected results are sustainable, systemic changes leading to open, participatory and accountable legislative, budgetary and debt processes. The public will be informed and empowered to provide input into budgets and legislation affecting them. The government will justify and be answerable for fiscal decisions and loans. Legislators will become more accessible and engaged with constituents. The Parliamentary Budget Office will provide rigorous analysis and alternative proposals. Overall, this commitment aims to shift legislative and fiscal processes from closed government activities with minimal disclosure, to open public processes with engaged citizen collaboration and oversight.

Commitment Analysis

1. How will the commitment promote transparency? The commitment will significantly improve transparency in legislative, budgetary, and debt processes by introducing public scrutiny through measures such as requiring open hearings on public loans. This will enable the public to access more information on how much is borrowed and how the money is spent. Automating parliamentary processes and providing documents in plain language will also increase transparency.

2. How will commitment help foster accountability? By opening up these previously closed-door processes to public input and monitoring, the commitment will enable citizens and civil society organizations to hold the government accountable. Public agencies involved in legislative, budgetary, and debt processes will have to justify their actions and spending to the public. The inclusion of transparency and accountability measures will further institutionalize greater accountability mechanisms.

3. How will commitment improve citizen participation in defining, implementing, and monitoring solutions? The commitment provides clear frameworks, requirements, and mechanisms for substantive public participation in defining, shaping, and overseeing legislative, budgetary, and debt processes. This enables citizens to collaboratively engage in policy making rather than just be passively consulted. Citizens will be able to directly give input on legislation and budgets, and track spending and outcomes. This facilitates a two-way dialogue between citizens and government with citizen voices integral to decision making.

Commitment Planning (Milestones | Expected Outputs | Expected Completion Date)

Introduce transparency in public borrowing and expenditure by enabling scrutiny of loans through committee public hearings. | Public hearings on public debt in line with the PFM Act, 2012. | December 2024

Conduct an assessment on implications of public debt on special interest groups (Debt and Gender Equality) | A Study on the impact of public debt on special interest groups. Timely reports on the shortand long-term impact on the current public debt | May 2025

Leveraging on digital tools to enhance openness in public borrowing | Interactive platform on public debt. Jihusishe App, Promise Tracker and Publish What you Borrow portals | December 2026

Provide a framework for the Parliamentary Budget Office to publish the alternative budget proposals and ensure Parliament always includes provisions for public debt in the Budget Statements and possible creditors. | Report on the budget items that will be financed through debt and the possible creditors. | October 2026

Making the legislative process more transparent and participatory by having parliament develop a state of parliamentary openness report | Annual state of parliamentary openness (To be included in the National state of openness) | November 2024

Develop a framework to assess the implementation of legislative proposals and legislative needs assessment. | Regular reports on the implementatio n of legislative proposals. | January 2025

Automation of parliamentary processes. Parliament is working to map and make available online processes such as submitting petitions to Parliament as well as memoranda on Bills | An online platform to submit petitions | June 2025

Secure a commitment on use of plain language text in government and parliament documents. | The commitment to be included in the Public Participation bill, 2023. | December 2024

Advocate for the Operationalization of the PBO Act and pursuant regulations. | Development of regulations | June 2025

Action Plan Review

Commitment 6. Public Participation, Legislative and Fiscal Openness

Commitment 6: Public Participation, Legislative, and Fiscal Openness
[Senate, National Assembly, County Assembly Forums, Mzalendo Trust.]

For a complete description, see Commitment 6 in Kenya’s 2023–2027 Action Plan.

Context and objectives

Kenya has undertaken budget transparency and open parliament reforms across previous action plans. Yet opportunity remains to concretise channels for citizens to receive information and engage government on key public finance issues. Most recently, protests sparked by the proposed 2024 Public Finance Bill underscored concerns that the government was making borrowing and spending decisions that did not reflect public input or interests. [103] This commitment has the potential to help address relevant priorities, ranging from a lack of genuine public participation channels to public debt transparency.

Critically, this commitment includes a broad range of activities to increase transparency and public participation around public debt, budget process, and legislative activities. Civil society will advocate for operationalisation of the Public Benefits Organisation Act through supporting legislation (Milestone 9), which could safeguard the environment for nongovernment organisations. While the commitment does not specifically aim to pass the Public Participation Bill, it does seek to include a requirement for plain language in government and parliament documents in the bill’s text (Milestone 8) while the parliament commits to launching online platforms for public petitions and memorandum (Milestone 7). As these platforms exist, implementers can consider steps to strengthen these channels for parliamentary engagement.

The reform includes various activities to ensure greater availability of information on Kenya’s public debt. Civil society and the Parliamentary Budget Office commit to opening committee hearings on debt to the public (Milestone 1) and include information on public debt in budget documents (Milestone 4). The Institute of Social Accountability (TISA) and Mzalendo Trust have also committed to publishing information on public debts on interactive platforms (Milestone 3) and conducting an assessment on debt impact on public interest groups (Milestone 2). More generally, the commitment also includes the publication of a state of parliamentary openness report and framework to assess the implementation of legislative proposals and needs (Milestones 5 and 6).

Potential for results: Modest

This commitment addresses issues central to the national debate in Kenya around public finance, debt, and the relationship between citizens and the state. It seeks to advance important but modest steps towards greater transparency and public participation in parliament. The activities build on recent developments such as the introduction of the Public Participation Bill to parliament, formation of an OGP Parliamentary Caucus and the National Assemblies’ Public Debt and Privatisation Committee. It is worth noting that most milestones have a civil society counterpart designated as the lead implementer. This commitment will require buy-in and implementation by parliament to achieve its greatest potential. For instance, its ambition could be raised if it included the passage and implementation of the Public Participation Bill, which would fund and standardise public participation practices across government.

Likewise, the Civil Society Parliamentary Engagement Network commits to advocating for regulations to operationalise the 2013 Public Benefits Organisation (PBO) Act which requires action of the relevant Cabinet Secretary. This remains critical and progressive to provide an enabling environment for non-governmental organisations to operate (Milestone 8). Mzalendo Trust hopes that the OGP Caucus, formed last year with members from the House of Representatives and the Senate, will help champion open government legislation such as the PBO Act. [104]

Despite having the fastest growing economy in Africa, Kenya struggles under significant public debt with USD 80 billion in domestic and international debt. Interest payments amount to 27% of government revenue. It has significant impact on fiscal and budget decisions, as demonstrated by the proposed 2024 Public Finance Bill, which sought to increase tax revenue to pay debt obligations. [105] Accessible information on public debt is therefore a key component for an informed public debate and participation in government budget decision making.

This commitment builds on Kenya’s existing foundation for public debt disclosure. The Public Debt and Borrowing Policy requires the National Treasury to publish public debt information. ^[106] At the time of writing, the National Treasury had published annual borrowing and debt management reports for the 2023–2024 fiscal year, debt sustainability analysis up to December 2022, external debt register up to December 2023, and monthly bulletins up to April 2024. [107] The External Public Debt Register provided loan-level information about amounts contracted and drawn, interest rate, maturity, and currency denomination for all loans. ^[108] In September 2024, the Auditor General of Kenya commenced a public debt audit. [109] However, debt information remains challenging for the public to understand.

Mzalendo Trust and TISA aim to increase the accessibility and usability of this information through interactive digital tools (Milestones 3) built on existing platforms such as the Jihusishe App, Promise Tracker, and Publish What You Borrow. To date, they are continuing to develop the Jihusishe mobile app [110] aimed at facilitating communication between citizens and government officials as well as provide current, accurate information about government projects, laws, policies, and proposals. ^[111] Mzalendo Trust also aims to produce a report on the gender implications of public debt (Milestone 2) in recognition of the heavy impact that funding cuts to service debt payments on gendered sectors such as education, health, and agriculture with the hope of generating resources and data to inform advocacy. [112]

The Executive Director of Mzalendo Trust noted that the National Assembly has a Public Debt and Privatisation Committee. ^[113] Notably, Kenya commits to holding public hearings on debt in line with the 2012 Public Financial Management Act (Milestone 1). Public hearings were one of several recommendations identified by a Public Debt Management Assessment carried out by the committee, with the support of the Westminster Foundation for Democracy. [114] Public hearings have the potential to strengthen both parliamentary and public oversight.

Although the 2010 Constitution enshrines the right to public participation in legislative actions, the government has not yet systematically enacted it through the passage of the Public Participation Bill. In its absence, there have been unclear standards for public participation and, consequently, Kenya’s Court of Appeals has struck down legislation deemed to not have sufficient participation. [115] Parliamentary openness is currently rudimentary, and public consultation is not proactively undertaken. Bills and reports, for instance, are also often not user friendly or machine readable while documents such as Hansards, voting records, and parliament attendance are not made public. ^[116]

The current draft Public Participation Bill introduced in the National Assembly in 2023 seeks to provide a framework for public participation in the decision-making process by state organs. Its scope includes policymaking, law-making, budgeting, and financial management. ^[117] As the passage of this bill has been an aim across previous action plans, it was not included in this commitment as the bill had already reached the public participation stage at the time action plan co-creation. ^[118] At the time of writing, Mzalendo Trust had submitted memoranda proposing the inclusion of a plain language reasonable accommodation requirements in the bill (Milestone 7), which requires that information be distributed widely using various available means in a language and form that can be understood by Kenyans with consideration for special interest groups such as persons with disabilities. ^[119] Should the bill pass by the midpoint refresh, reformers can consider extending this commitment to include its implementation.

Meanwhile, the parliament has digital tools in place relevant to electronic submission of petitions and memoranda ^[120] as well as a legislative proposal tracker ^[121] (Milestones 5 and 6). However, there is a need to standardise and strengthen public participation channels with parliament. Many members of parliament remain hesitant to undertake genuine transparency and participation efforts which often led to public input not having any effect on draft legislation. [122]

Opportunities, challenges, and recommendations during implementation

This reform has previously stalled due to a lack of high-level political support. Importantly, it presents an opportunity for the government to concretely respond to public outcry for genuine avenues to participate in decision making. As with other commitments, there is no allocated budget and therefore implementers must source funding for activities.

Reformers will be able to review progress and amend this commitment at the two-year mark. The IRM recommends that the commitment be updated to include more forward looking and ambitious milestones to reflect the four-year implementation period. These could include passage and implementation of the Public Participation Bill as well as strengthening requirements for the parliament to act on petitions, memoranda, and input submitted by the public. It could also include a clear commitment to operationalise the PBO Act and activities to continue advancing transparency and accountability of public debt.