By Derrick Makhandia
As the year comes to an end, you’ve probably heard of several Acts being challenged in court on grounds that, either the general public or people likely to be affected by the Act weren’t consulted during the making of the Act. Public participation especially in the legislative space is a fairly new concept and there are no standardized laws or procedures regulating how it should be done; yet, this is no excuse to by-pass it, and the courts will hear no excuses either.
There are several things the court will consider, but to help you, this is a general guide to avoid the frustrations of having your Bill declared unconstitutional due to lack of public participation.
To begin with, do it early. You have already developed a draft and you intend to table it. You need to know that once you table it, several forces come into play that will make it more difficult to amend your Bill. It is important to consult widely before you finally table the Bill. This will allow you to amend it more easily.
However, if there is concern that your idea might be “hijacked” and tabled before you, then table it as soon as reasonably possible but make sure you conduct more civic engagement on it before it advances to later stages. You can still introduce amendments even when the Bill is tabled. Furthermore, nothing stops you from engaging the public even after the Bill is tabled.
Secondly, keep a small crowd when conducting a public participation forum. But don’t take this to mean segregating members of the public. A small crowd allows you to have a more meaningful engagement which should be the objective of public participation. Consequently, don’t underestimate Wanjiku. You will be shocked by how much Kenyans know. A local farmer or a boda boda understand a lot about this country owing to their nature of work. Don’t be dismissive. Listen.
Nevertheless, you shouldn’t leave out the experts. Where necessary, deliberately seek the opinions of experts. Even though ordinary citizens understand the context of their challenges, experts offer you highly technical, informed and researched information. If for example you are sponsoring a Bill on nuclear energy or biotechnology, the input of experts will be more beneficial.
Another important piece of advice is that you keep records of your consultations. Our courts make decisions based on evidence. A record of your consultations is necessary to prove that you have done your part. Also, make sure your records are well labeled. If there is a participant list, ensure it has the name of the event, venue, time and particulars of the participants. Remember, a transport reimbursement list is NOT a participant list.
Remember what we said about meaningful engagements? Yes, to do that, make the actual activity interactive. You are interested in people sharing ideas, not a lecture. If at the end of the exercise you have not learnt anything new, then it was flawed. First, share your inspiration and provisions of the Bill, then focus on getting feedback from the participants. Do the least talking, but guide the discussion to elicit exchange of information between everyone in the room including you as equals. If need be get a neutral moderator.
And while you’re at it, read between the lines. Not all opinions will be straightforward. If you are discussing a Bill on mineral benefit sharing and someone says the profits should not be paid to Treasury, then the underlying problem could be lack of trust in the institution due to corruption. You may want to input a clause or section that will ensure transparency in the Bill.
In the same breath, you don’t have to incorporate all (or any) the information you have received into the Bill. But allow yourself to get convinced. Be flexible in your position. Do not take a hardline. Do not make the effort a checklist. You have a moral duty to put meaning into the exercise. Act in good faith.
The same goes for engagement. Be flexible in your approach. It doesn’t have to be a physical engagement. You can do emails, conferences and even social media. However, the sad truth is that we are yet to achieve such levels of technological embrace. If you use this platform, let it not be exclusive. Use it to gauge and get opinions but to be safe, supplement it with the traditional method. Lastly, but not least, and this is the most unpleasant point. It takes money to conduct the exercise. You cannot run away from this but you can get support from institutions, NGOs and even funds you have access to. But be prudent with the money nonetheless.
Evidently, there is no formula to how public participation should be done. There is no magic number which you must meet to say you have carried out substantial public participation. But if you must squeeze out a number from me, 5 forums with diverse target groups isn’t that bad.
This list is by no means exhaustive. Consider what other countries are doing. Even locally, Makueni County can be a good place to check out. This key points also stem from the experience we’ve had while visiting different parts of the country promoting our Bill Annotation platform Dokeza. Kiswahili word for annotate.
We’re nonetheless grateful to the lawmakers who took public participation seriously and we shall continue amplifying such efforts in future.
The writer is Mzalendo’s Programs Officer, Parliamentary Affairs.