Rethinking the practice of Representative Democracy: a Case for Increased Public involvement in the Law-making Process in Kenya

Abstract

Every democracy ought to have a mechanism through which the public participate in the management of public affairs, including the law-making process. Sovereignty, including that of Parliament, belongs to the people but owing to the impracticability of every citizen participating in the legislative process; their representatives in Parliament represent their views. Kenya, a representative democracy has adopted this model. However, the 2010 Constitution of Kenya introduces aspects of participatory democracy by requiring that the public be involved in, among others, the legislative process. These provisions are yet to be fully implemented since a framework to facilitate public participation has not been put in place. The practice prior to the new constitutional dispensation still obtains, although some attempts have been made to allow the participation of the public. That said, various pieces of legislation have been passed without public input. The lobbying preceding such legislation has invariably put Members of Parliament in a dilemma between serving their own interests and those of the electorate. The concept of public participation is not entirely new; international instruments recognise the right to participate in public affairs, while some countries have put in place mechanisms for public participation in the law-making process and in some instances, the court has nullified legislation passed without the requisite participation of the public. Although the Kenyan Parliament has been strengthened over the years, it has not been responsive to public view. This paper evaluates the existing mechanisms for public participation by examining the Constitution, Standing Orders of the National Assembly and the practices in place for public involvement in the legislative process. The evaluation is based on an analysis of print and electronic material and on the basis of data generated. This paper identifies the existing avenues for public participation and recommends measures to give effect to constitutional provisions on public participation in the law-making process.