• Decision makers must accept and implement public participation with goodwill.
• The PSC's actions in establishing the CAS office raise important public participation questions.
The number and variety of cases in which decisions have been declared unconstitutional in Kenya due to a lack of public participation shows how intricate public participation can be.
PSC and CAS office
In September 2022, the Public Service Commission (PSC) sought public views on the proposed Chief Administrative Secretary (CAS) position. The advertisement stated the office's functions and qualifications; and that the PSC would conduct a competitive process, the President would nominate, and the National Assembly vet the nominees. The public had two weeks to comment. Meanwhile, the Law Society of Kenya filed a court challenge to the process, citing a lack of adequate information to enable informed public participation. The LSK persuaded the court to suspend the process until the matter was settled.
The very day of that ruling (three days after the public participation period), the PSC called for CAS applications. It argued that it had reviewed all public views, recommended the establishment of the CAS office, and the President established it - all on the day before the court order. Some 498 people had responded to the call for public views. Three requested for more information, 108 applied for the CAS position, 162 supported the office's creation and 225 opposed it. The Commission found that those opposed had three primary reasons: the office had been pronounced unconstitutional by a court in 2021, it would increase the wage bill, and it would duplicate the Cabinet Secretary and Principal Secretary's functions.
The previous administration created the office in 2018, but in 2021 the courts declared this unconstitutional for failing to recruit competitively and violating public participation requirements. The orders were suspended, and remained so until the end of the last administration, as they would impair ministry operations during the Covid-19 pandemic.
Public participation problem
Kenya is generally struggling with the concept of public participation. In the last decade, many court findings of unconstitutionality of decisions have been partly because of lack of public participation. This is rather concerning. Several court judgments have blamed the lack of a public participation law for its vagueness and encouraged the legislature to enact a law.
Important questions about public participation
The PSC's actions in establishing the CAS office raise important public participation questions. Participation in what, when and how? But the main question is 'how'. The question involves how to invite public participation, for how long, who to invite, what platform to use and how to identify it, how the public will be enabled to participate, and how to incorporate public views into the final decision? The last two ‘how’ questions will be the focus of this discussion.
Sufficient information to enable informed opinions?
In the first CAS case (Okoiti v Public Service Commission), the court faulted the PSC for failing to provide information about workload analysis, current authorised establishment, level of grading, designation, extra posts required, evidence of optimum utilisation of existing posts, information that the office would not disadvantage similar offices in the public service or cause unfair competition, and information about the financial implication of creating the office, and also the source of powers it was exercising.
Further, the High Court held in the BBI case that public information should have been provided in English, Kiswahili, Braille and Kenyan sign language, the constitutionally required languages. Furthermore, that the Constitution requires proper information and sensitisation prior to an activity and during the process to empower individuals to engage meaningfully and from a position of information.
In addition, Kenya's draft public participation policy, 2018, requires publication (proactive) and publicisation of information; and, published or not, it must be accurate, timely, well disaggregated, in simplified language and format, accessible, using friendly systems, and authentic information of integrity. It also states that the media and format should consider the literacy levels of the participating public and that the audience should be supported to access information. According to the PSC 2015 guidelines on public participation for policy formulation, a state organ should identify and meet public participation capacity needs, publish information about the aim of a public participation, and provide feedback on incorporation of public views. Also, the draft county model law on public participation states that information for the public should include a summary of the subject matter.
In the case of the PSC reestablishment of the CAS office, the public was informed about the legal source of the Commission's authority, the position's functions, and the qualifications required for office holders. Thus, the question is whether the information provided was sufficient for the public to engage meaningfully and in light of the earlier judgment on a similar matter. Would the people, for example, want to know how much it would cost to maintain the office and an analysis to show the functional gaps at the ministries?
How to consider public views
One of the main objectives of public participation is to influence decision-making. The courts have held in Mui Coal Basin Local Community v Permanent Secretary Ministry of Energy that “the right is to represent one's views, not a duty of the agency to accept the view given as dispositive”. Also that “there is a duty for the government agency or public official involved to take into consideration, in good faith, all the views received as part of public participation”. In the BBI case at the High Court, the court held that “the mere fact that an entity is required to take into account public views does not necessarily mean that those views must find their way into the final decision”. Further, the court said in the Mui Coal case that “public participation is not meant to usurp the technical or democratic role of the office holders but to cross fertilise and enrich their views with the views of those who will be most affected by the decision or policy at hand”. Furthermore, in the Doctors for Life case, the Constitutional Court of South Africa held that, parties … should feel that they have been given a real opportunity to… influence decisions in a meaningful fashion. The … [state agency] must have the benefit of all inputs that will enable them to produce the best possible laws.
The US Environmental Protection Agency's public participation guide states that agencies should balance public views, and that participation should be solicited at specific points in the decision process and on specific issues where it has a real potential to influence the decision or action.
In their response to the LSK case, the PSC said they had considered the views and decided to recommend establishment because the views opposed to the proposal did not have their facts right, regardless of whether they were the majority. Further, by January 13, 2023, 208 people had commented on the post about the public participation advert on the PSC Twitter handle. More than 90 per cent of comments on the post opposed creating the office. Two comments just polled people on whether to create the position. Combined, more than 500 respondents opposed it by over 84 per cent. Public participation is not simply a matter of majority views. Is there a risk that people will feel their views don’t matter? It is important the people understand the situation and that public views do matter but do not, or not automatically, replace expert opinion. Feedback on why views are not accepted is important.
Courts and other agencies, official and in civil society, have created guidelines on public participation addressing the ‘how’ question, providing, with academic writing, a great deal of guidance for the decision-making process. Makueni county, for example, has detailed participation structures and guidelines. Laws and more guidance may not be the real need. Decision makers must accept and implement public participation with goodwill. In addition, just as the Commission on Administrative Justice (CAJ) develops and facilitates public education awareness on access to information, a comparable agency may be needed to advise departments on public participation and assist them as necessary.
Ben Nyabira is a program manager for the Rule of Law Programme, Anglophone Sub-Saharan Africa at Konrad Adenauer Stiftung (KAS).