The absence of a clearly defined legal framework on what constitutes adequate public participation has left Kenyans grappling with unpopular decisions from both Parliament and the Executive.
Public participation was hailed as one of the landmark achievements of the 2010 Constitution, placing citizens at the heart of decision-making. Yet 15 years later, the country still struggles to define what “adequate” participation means. This has repeatedly put Parliament at odds with the Judiciary and the public.
Unanswered questions persist: Do citizens’ views collected during public forums override those contained in government policy papers or parliamentary Bills? Does the exercise interfere with the legislative role of MPs? Are public views meant to improve a Bill, or is participation merely about being heard—without necessarily influencing the final outcome?
The ambiguity has proven costly. Courts have struck down legislation for failing the “adequate participation” test. In 2014, Justice George Odunga ruled that participation was not cosmetic but central to law-making, financial planning, and governance. Article 118 of the Constitution explicitly requires Parliament to conduct its business openly and facilitate public involvement.
National Assembly Speaker Moses Wetang’ula admits what is missing is a law that clearly defines the depth, extent, and impact of participation. “The Constitution does not envisage public views overriding other views. They may enrich or inform them, but being heard is what counts in a democracy where the minority have their say and the majority their way,” he said.
Speaker of the National Assembly Moses Wetang'ula.
Photo credit: File | Nation Media Group
Mr Wetang’ula further questioned duplication between the two Houses, citing the Tea Bill: if the National Assembly conducts participation, should the Senate repeat the process? “Isn’t it a waste of public resources?” he asked. A Public Participation Bill, 2024 is now before the House.
Experts agree clarity is urgent. Beatrice Monari of the International Commission of Jurists notes the current vagueness allows token forums that exclude genuine voices. Courts, she adds, have frequently nullified laws on these grounds. She proposes borrowing from Switzerland’s model, which provides clear rules, referenda, extended consultations, and robust feedback mechanisms.
Caroli Omondi, chair of the Constitutional Implementation Oversight Committee, insists a law is overdue: “Public participation is a mandatory governance principle under the Constitution, yet we still lack enabling legislation. This must be addressed urgently.”
Suba South MP Caroli Omondi makes his contributions during a past session in the National Assembly.
Photo credit: Dennis Onsongo | Nation Media Group
Civil society voices echo this. Suba Churchill, of the Kenya National Civil Society Centre, says the main barrier is lack of political goodwill: “Governments fear that empowered citizens will ask harder questions.” He added that while not all public views must be adopted, each institution has a duty to explain what was considered and why some views were rejected.
Mr Churchill also challenged citizens to demand accountability at the ballot: “Even as we push for genuine public participation, Kenyans must elect leaders committed to implementing the Constitution. If you build a church but appoint a thug as priest, he will only use the pulpit to advance his thuggery.”
