Under Article 10(2)(a) of the Kenyan Constitution, the state is obligated to respect “public participation” as a feature of good governance. This includes the need to ensure that the Parliament’s law-making processes “facilitate public participation and involvement”, as per Article 118(1). However, what does this mean in practice? Would it be enough for the state to consult the public on paper, but give no sincere consideration to their views afterwards? According to the emerging view of Kenyan courts, it is no longer enough to consult the public. Rather, once their views are surveyed, departing from the public opinion is acceptable only by providing reasons. In this blog, I contextualise the importance of this finding under Kenyan constitutional law and highlight its citational weight under international human rights law.

Towards Meaningful Public Participation

The Kenyan High Court in Enock Aura dealt with challenges against legislations relating to public health. Citing the landmark Doctors for Life case from South Africa, it emphasised the importance of public participation in ensuring the accessibility of state affairs to all stakeholders. Ultimately, the Court found that the process was vitiated as it was hastened and inaccessible to marginalised groups.

However, in formulating the tests for meaningful public participation, the Court introduced a new requirement. Supposing that the Parliament did pursue an effective consultative exercise, it must then engage with the results in good faith. It could nonetheless depart from the views of the public, but not without giving reasons. This opportunity to place the state under public scrutiny ensures that prior consultation does not become merely “a cosmetic or a public relations act” (para 64). Without an obligation to provide reasons for dismissing the public’s views, the requirement of public participation would be reduced to a tick-box exercise, regardless of the inclusivity or rigour of the consultation.

This reasoning was reiterated by the Court of Appeal in the Finance Act appeal case, which has since been appealed to the Kenyan Supreme Court. It remains to be seen whether the highest court will endorse the approach of the lower courts.

International Legal Weight

The significance of this finding as a comparative law citation for foreign courts sympathetic to public deliberations was recognised by Nyawa and Bhatia. However, it also qualifies as Kenyan state practice concerning public participation as a human right under Article 25 of the International Covenant on Civil and Political Rights (ICCPR). This is important to establish since the express requirement of public participation is uncommon as a constitutional norm, with the exception of states such as South Africa, East Timor, and Uganda. Therefore, reframing the Kenyan decisions as a state party’s interpretation of the ICCPR would give them further persuasive weight as foreign citations to the national courts of other states parties to the ICCPR more generally.

Article 25 of the ICCPR provides for the right to public participation. Typically, discourse around this right, outside the limited context of elections, focuses on creating and then ensuring rigour within the participatory process. The Human Rights Committee in its General Comment 25 concerning the right did not address whether and how states may become bound by the results of participatory processes. The obligation to provide reasons when departing from these results offers a minimum but important safeguard. The public may question and challenge the state if it fails to seriously engage with their voices. State parties to the ICCPR are expected to implement rights under the standard of conduct of due diligence. ‘The procedural safeguard of reason-giving, then, can be seen as Kenya’s interpretation of duly diligent state conduct as required under Article 25. With national courts providing remedies against states that seek to circumvent public participation, the public will be able to ensure that the state’s consideration of public views is not perfunctory.

It is important to note that the Kenyan judiciary did not cite Article 25 in the foregoing cases. However, considering the fact that Kenya is a state party to the ICCPR, and given the closeness between the contents of Article 25 and Kenya’s constitutional provisions on public participation, one may arguably consider interpretations of the latter as reflecting Kenya’s understanding of the former. This is bolstered by the fact that in Kenya’s reports within the Universal Periodic Review, it indeed takes pride in the apparent similarity between the international human right to public participation and Kenya’s constitutional provisions (see para 75 and para 84). In my view, any future discourse on Article 25 must, therefore, carefully attend to Kenyan case-law on the subject.