While Kenya’s constitution provides for public participation in decision-making on matters of national interest, the conduct of such exercises has been either haphazard or abused by government to achieve pre-set results that are most times at variance with prevailing situations.

The most abused public participation exercises are issues that the executive has interest in such as budget-making, security legislation, appointment to public office and constitutional offices, upgrade or downgrade of institutions and infrastructure development, among others.

In view of the misrepresentation of public views to achieve predetermined results, Kenya now plans to create an office responsible for overseeing the conduct of public participation in the country to ensure the exercises are scientific and fool-proof.

Public participation is a constitutional requirement in matters of national interest. However, since public participation became mandatory, the outcomes of such exercises have been questionable as there is no material evidence of qualitative public participation, critics say.

Among proposals contained in the new Bill being spearheaded by the Justice, Human Rights and Constitutional Affairs Department is the establishment of an office of the Registrar of Public Participation that will under the Public Service Commission (PSC).

According to the proposal, the occupant of the office shall undergo a competitive recruitment process before being appointed by the cabinet secretary, under whose ministry the office shall be domiciled.

The registrar shall be responsible for ensuring the implementation of all functions outlined in the act or any other written law touching on public participation exercise in the country.

“The registrar (of public participation) shall receive and approve public participation plans of responsible authorities, maintain a register of public participation plans and public participation reports and develop and implement a public participation monitoring, evaluation, assessment and learning framework,” proposes Part II of Clause 12 (a, b, c) of the bill.

“…. (The registrar) shall submit to the Cabinet Secretary reports on the statutes of public participation, maintain a website of public participation reports, recommend responsible measures to be taken to ensure compliance with this Act and conduct capacity building for responsible authorities,” the bill provides.

The bill also proposes that PSC in liaison with the relevant cabinet secretary, shall be responsible for deploying staff to work in the new office in consultation with the Salaries and Remuneration Commission (SRC).

Part IV clause 14 (1) requires any authority planning to conduct a public participation exercise to first submit such a plan to the office of Registrar through its accounting officer.

Such a plan shall (in cases of a legislative proposal, statutory instrument, policy, programme or project) include a copy of the proposal, a summary of the information contained in the proposal and proof of funds for the public participation exercise.

“…A notice of the public participation exercise shall specify the objects of the proposal, a description of how the responsible authority shall provide interested or affected persons with an opportunity to present views and how the information on where and how the proposal may be accessed by the public,” reads the Bill in the same part.

Those who wish to submit their views on a given proposal shall be required to do so within a period of at least 21 days from the date of notice.

In addition, provisions of the Access to Information Act, Kenya Defence Forces (KDF) Act and Data Protection Act relating to the protection of the right to privacy under Article 31 of the Constitution and limitation of the right of access to information under Article 35 shall apply to responsible authorities undertaking public participation under the proposed law.

“The accounting officer of a responsible shall ensure each proposal and summary of information submitted are publicly available in a format that can be easily accessed and publicises the notice in a newspaper nationwide circulating on the responsible authority’s website and in any other electronic or print medium,” adds Clause 15 (a, b) of the bill.

In addition, such officers shall provide a mechanism for receiving submissions in respect of the proposals from the public and further employ the media and venues that are accessible to persons living with disabilities where public meetings are held in respect of the proposals.

A responsible authority includes a department or agency of the national or devolved government and an authority, body or other entity declared to be a national government under Section 4(1) of the Public Finance Management Act, and Constitutional Commissions and Independent Offices.

The Bill also gives accounting officers a period of seven days in which to submit a report of their public participation exercise to the Registrar.

Such a report shall include the persons who are interested in or are likely to be affected by the proposal.

Where the public participation forums are held in public, such a report will include the names of persons in attendance accompanied with their signatures well recorded in an attendance register.

“The report submitted shall set out a description of the mechanisms for receiving submissions in respect of the proposal from the public including the language of communication, the time allocated to make submissions in the respect of the proposal, the explanation that of how the responsible authority considered the social economic circumstances, religious beliefs, ethnicity and knowledge levels of the persons interested or is  likely to be affected by the proposal, ” reads Part IV Clause 16 (c, d and e).

Once the registrar is satisfied that a public participation exercise was carried out subject to the proposed Act, a certificate of compliance shall duly be issued out.

For purposes of redress or complaints in regards to how a public participation exercise was conducted, a person can still lodge his or her misgivings either in writing or orally to the Registrar or any other person authorised in that regard by the Registrar.

The language of communication in such communication shall be either English or Kiswahili.

Article 118. (1) b of the Kenyan Constitution grants parliament authority to facilitate public participation and involvement in the legislative and other business of Parliament and its committees.

The Section also prohibits Parliament from excluding the public or any media, from any sitting unless the Speaker rules there are justifiable reasons for such an exclusion.

• Tell Media / KNA report / By Samuel Maina

Justice, Human Rights and Constitutional Affairs PS Judith Pareno addressing the press in Nyeri on the sidelines of a public participation forum on the Public Participation Bill 2025, the Whistleblower Protection Bill 2025 and the Anti-Corruption Laws Amendment Bill 2025.