Kenya’s Legal Framework for Public Participation: Towards an Effective Realization of the Right to Public Participation

Abstract

This project investigates the substance, the structure and the threshold of the right to public participation in Kenya during the period 2010-2021. Although the Constitution of Kenya 2010 obligates the parliament to facilitate public participation in legislative processes, nevertheless the realization of the right is at best problematic with regard to ascertaining its scope and thethreshold required to satisfactorily discharge the parliament‟s duty. The study argues that this is because the right has not been defined in the Constitution, or statutes, or judicial decisions. The study employs doctrinal research methodology in order to illustrate that the substance, structure and threshold of the right to public participation in Kenya is undefined and unsettled. By reviewing case law and the legislative and institutional framework, it demonstrates that Kenya‟s framework on the right to public participation is materially deficient. The right has not been defined in the Constitution, or statutes, or judicial decisions. Courts have not articulated „the reasonability‟ test of determining threshold in definite terms but they have not demystified the qualitative and the quantitative aspects of the test. The Public Participation Bill 2018 does not cure most of the legal challenges identified by the study. The study also employs comparative research methodology in order to illustrate lessonsthat Kenya can learnfrom South Africa‟s experience, especially from their courts which have defined the parliament‟s duty to facilitate public involvement in very definite terms, by simplifying the two aspects of the duty as well as the key ingredients of each aspect. The study offers the ideal definition of the right and demystifies the „reasonability test‟ of determining the threshold required to discharge the duty.