Public participation is a key part of Kenya’s constitution. It starts with Article 1 and appears throughout the constitution. This principle allows citizens to shape decisions, hold leaders accountable and lend legitimacy to government actions. It is essential for transparency, accountability and democracy.
Before the well-known 2023 and 2024 cycles, Parliament usually received between 50 and 200 memoranda on Finance Bills. For example, in 2021, the Departmental Committee on Finance and National Planning received only 56 submissions.
But when reviewing the Finance Bills for 2024, 2025 and 2026, the same committee received over 100,000 memoranda from traders, professionals, civil society groups, community organisations and everyday citizens.
Because it is so important, public participation is now one of the most debated constitutional issues in Kenya. Courts have often struck down laws, policies and government actions when there was not enough citizen involvement.
They have pointed to problems such as short notice, hard-to-access information, rushed consultations and the ignoring of public views. In Okoiti v Public Service Commission (the CAS case), the courts made it clear that public participation should not be just a formality. It must be real, informed and done honestly.
While courts have helped set the constitutional standards, more citizens are now using public participation to hold government bodies accountable. This growing trend raises a key question of whether democracy is maturing, whether people are frustrated with unresponsive institutions, or both.
The answer is likely both. Reports from the independent human rights organisations show that deaths during the Finance Bill protests were even higher in 2024, with at least 70 cases, along with thousands of injuries and arbitrary arrests, and hundreds of enforced disappearances. This points to a serious crisis of representation. Many young Kenyans felt their concerns about new tax proposals were not properly heard or addressed by their leaders.
But citizen engagement is not just about street protests. More and more, Kenyans are using official constitutional channels to shape public policy.
However, participation is not just about numbers. What really matters is whether public views are truly considered and clearly shown in decisions. Inclusivity is just as important. For participation to work, information must be easy to access, timelines must be fair and opportunities must reach marginalised groups, people with disabilities, and even those without digital access.
These questions were central to the litigation surrounding the Finance Act 2023. In Civil Appeal No E003 of 2023, the Kenya Human Rights Commission and other petitioners challenged the Act before the High Court, Court of Appeal and Supreme Court. The High Court upheld the Act, finding compliance with Article 118, which requires Parliament to conduct business in an open and accessible manner.
The Court of Appeal disagreed, holding that substantial post-consultation amendments required fresh public participation and that Parliament had failed to adequately consider public views, thus falling short of the constitutional standards embodied in Articles 10 and 118. The Supreme Court ultimately reinstated the Act, finding substantial compliance with constitutional requirements and affirming Parliament’s legislative flexibility.
Aside from the different court decisions, these cases showed that big financial decisions are now judged not just by their economic impact, but also by how fair and open the participation process was. People might accept decisions they do not agree with, but they are less likely to accept decisions made through processes they see as unfair or already decided.
As Parliament looks at over 100,000 memoranda on the Finance Bill, Kenya is at a key moment for participatory governance. How Parliament responds will affect not just future tax policy, but also how much people trust their government. If Parliament falls short, public distrust could grow.
Nerima is the programme manager for political accountability in state institutions at the Kenya Human Rights Commission. Biech is the acting accountable governance lead at Oxfam Kenya
