Reclaiming Participatory Sovereignty: A Constitutional and Technological Rethink of the Public Participation Bill, 2024

Legislative Redraft & Policy Review of the Public Participation Bill, 2024 in light of Attorney-General & Others v. Ndii & Others [2022] KESC 8 (KLR)

By Joseph Kihanya

The Public Participation Bill, 2024 seeks to regulate civic engagement, but in doing so risks constitutional erosion. The Supreme Court’s authoritative judgment in Attorney-General & Others v. Ndii & Others [2022] KESC 8 (KLR) firmly grounded public participation in Articles 1, 10, and 118 of the Constitution—as a direct expression of sovereignty, not a legislative convenience. 

This memo reviews the Bill’s shortcomings, citing judicial pronouncements from all seven judges in Ndii, and presents a reform pathway grounded in constitutional supremacy, the Access to Information Act, 2016, and a roadmap for digital, inclusive, verifiable civic engagement. We recommend the Bill be withdrawn or redrafted, with the Commission on Administrative Justice (CAJ) leading in designing participation infrastructure fit for a 21st-century democracy. 

1. Constitutional Foundations: Public Participation as a Right, Not Procedure Public participation is the lifeblood of our constitutional democracy.” — Chief Justice Martha Koome, Ndii [2022] KESC 8, para

Key Judicial Pronouncements

• Justice Martha Koome ,CJ , Justice Mwilu,DCJ, I Lenaola SCJ

45. While participation of the people had been identified as a foundational value and principle of governance under article 10(2) of the Constitution, it was even more crucial with regard to processes that would lead to constitutional amendment. That was so, since it was the people’s acceptance and ownership that granted democratic legitimacy and authority to a constitution. Therefore, the process of constitutional amendment should be inclusive, enable deep public participation, and promote active involvement of the people during all the stages. Considerations around public participation in constitutional amendment process ought to be geared towards maximizing public participation and ensuring that people understood the options and choices available to them in the process.46. Public participation and consultation was a living constitutional principle that went to the constitutional tenet of sovereignty of the people. The following were guiding principles for public participation:

1. As a constitutional principle under article 10(2) of the Constitution, public participation applied to all aspects of governance.
2. The public officer and or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation.
3. The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to that constitutional principle using reasonable means.
4. Public participation had to be real and not illusory. It was not a cosmetic or a public relations act. It was not a mere formality to be undertaken as a matter of course just to fulfil a constitutional requirement. There was need for both quantitative and qualitative components in public participation.
5. Public participation was not an abstract notion; it had to be purposive and meaningful.
6. Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case-to-case basis.
7. Public participation was not necessarily a process consisting of oral hearings, written submissions could also be made. The fact that someone was not heard was not enough to annul the process.
8. Allegation of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case-to-case basis.
9. Components of meaningful public participation included the following:

1. clarity of the subject matter for the public to understand;ii. structures and processes (medium of engagement) of participation that were clear and simple;iii. opportunity for balanced influence from the public in general;iv. commitment to the process;v. inclusive and effective representation;vi. integrity and transparency of the process;vii. capacity to engage on the part of the public, including that the public had to be first sensitized on the subject matter.It was against those standards that allegations of lack of public participation ought to be assessed. The constitutional threshold was that of reasonableness of notice and opportunity for public participation.

Justice Ibrahim, SCJ,

 It would be too onerous and expensive to expect citizens to engage and involve the voters generally, to the broad and extensive elements of public participation as enumerated by the High Court. To expect a full-blown civic education and public participation exercise at the time of signature collection from a truly citizen driven process, was to place a burdensome financial and logistical hurdle which would be antagonistic to the very essence of the process.163. The promoters published an English version of the Amendment Bill on the internet. The 2019 Kenya Population and Housing Census placed only 22.6% of Kenyans aged 3 years and older with access to internet use while only 10.4% use a computer. The act of publication of the Amendment Bill on the internet could not be termed as having been sufficient or meaningful with such low levels of internet penetration across Kenya. While the standard set by the High Court could have been too high, the actions of the promoters were not sufficient. Especially, when considering the fact that the Amendment Bill had 74 proposed amendments.

 Justice Wanjala, SCJ,

 The guiding principles issued by the court left no doubt as to the purpose of public participation in the process of governance. The Constitution placed the people at the centre of any policy, administrative, legal or constitutional decision, that could be made from time to time by those whose responsibility it was to govern or serve. The principle of public participation ensured, that the people had a say in the manner in which they were governed.

Justice Njoki Ndung’u, SCJ

 The Legislature had to urgently provide for the parameters of public participation. It had to do so through an enabling statutory framework. Such legislation would provide precision and clarity about the various processes involved and address issues like the mode, extent, stages, proof of public participation; lay out the responsibilities of who should conduct public participation and when; and how it would to be funded at its various stages. “Lack of proper public conception, design, and implementation.”

Legislative Redundancy and Legal Risks of the Bill.

These principles bind all levels of government and any state organ seeking to affect policy, law, or public resources.

Access to Information Act, 2016: Participation’s Constitutional Engine

 Participation requires knowledge parity, which the ATI Act enables:

• Article 35(1): Guarantees access to state-held information;
• Section 5, ATI Act: Requires proactive publication of key records;
• Section 9: Provides a remedy mechanism;
• Judicial affirmation: Courts have held that ATI is a “precursor to public engagement” (Katiba Institute v. Cabinet Secretary for Health [2021] eKLR).

The ATI Act should be the foundation, not the afterthought.

Operationalizing Participation: The Role of the Commission on Administrative Justice (CAJ)

CAJ, under Articles 59 and 47 of the Constitution and the Fair Administrative Action Act, is best placed to develop and enforce national participation standards.

CAJ’s Powers:

• Set minimum guidelines for meaningful participation;
• Audit compliance across ministries and counties;
• Certify participation processes in budgeting, policymaking, ICT reforms, and legislative development;
• Issue enforcement notices for violations.

Technological Reform: Public Interest Technology (PIT) for Participation 

The Constitution demands inclusion for all Kenyans. In an age of digital innovation, this requires public interest technologies to reduce friction and increase accountability. 

 Conclusion

Public participation is not a favor bestowed by the state — it is the people’s right as sovereign holders of power. Any attempt to regulate that right must enhance, not restrict, its application. The Supreme Court in Ndii made it clear: governance must be co-created with the people. Legislation that ignores this is not only legally deficient — it is democratically dangerous.

References

• Attorney-General & 2 Others v. Ndii & 79 Others; Dixon & 7 Others (Amicus Curiae) [2022] KESC 8 (KLR)
• Constitution of Kenya, 2010: Articles 1, 10, 35, 47, 59, 118
• Access to Information Act, 2016
• Fair Administrative Action Act, 2015
• Katiba Institute v. CS for Health [2021] eKLR
• Doctors for Life v Speaker of the National Assembly (CCT12/05) [2006] ZACC 11