SAM'S SENSE: Is there really any sense in conducting public participation?

Tonight, please help make sense of public participation. The Constitution of Kenya cites “participation” at least 18 times. Article 118, 1, b: states “Parliament shall facilitate public participation and involvement in the legislative and other business of Parliament and its committees.”

Article 201 provides that “there shall be openness and accountability, including public participation in financial matters.” There can never be a better example than the Finance Bill 2023 of legislative proposals that require the public's input.

Article 10 of the Constitution, on the national values and principles of governance cites patriotism, national unity, […], and participation of the people as key. To participate in public discourse is a patriotic duty. It is patriotism to listen to the voices of the public.

And so I ask, how is Parliament facilitating public participation? By inviting submission of memoranda that closes this Saturday; how many people or groups of organisations can do so?

You see, leaders are answerable to the people, not a person, not the President, not a political party – the people.

Whichever mode of public participation, it must be accountable, to the people. If properly done, it would strengthen and legitimise State decisions, actions and development interventions.

Let me cite a few pillars that would enable meaningful public participation:

First is on the access to information. What efforts has the government or even Parliament made to inform the public of the contents of, say, the Finance Bill? Or are citizens depending on just the media whose access to the bill started off as a leaked document?

Second, has there been civic education to explain what the proposed law means and how it will affect their daily lives or are politicians banking on public ignorance.

Thirdly, how are our Parliamentarians, the National Treasury and even the Presidency taking feedback from Kenyans? Or is it an opportunity to strike an argument, to attack and label everyone as having “joined the opposition”?

You see, I am guided by a report of the Public Service Commission in October 2022. The commission had been requested by the National Executive to conduct public participation on the establishment of Chief Administrative Secretary (CAS) positions. As the good servants they are, they went ahead to do it. What were the findings?

41 per cent of the views received and analysed were in support of creation of the positions. 58 per cent were against it for various reasons including that it could have led to a rise in the wage bill and therefore a further economic burden to tax payers. Those opposed also argued that there was duplication of roles between and among the CASs, the 51 Principal Secretaries and the 22 Cabinet secretaries.

Well, the Public Service Commission went ahead to argue out the opposition saying it was out of lack of information. They approved creation of 23 positions. But when the President made the appointments, 50 men and women were picked. This matter is currently in court and I would not want to meddle in the court’s work, but you get the drift.

Let me cite another example. Remember the vetting of Cabinet Secretaries carried out by the National Assembly in October last year? There were several submissions by members of the public in the name of public participation; for and against some of the Cabinet nominees. In particular, seven nominees attracted objection to their being named to the office of Cabinet Secretary. Some were on allegations of integrity, ethical conduct and criminal matters that had been in court against some of the nominees then.

In its due diligence, the National Assembly wrote to the Director of Public Prosecutions Noordin Haji asking him to inform the House if there were pending criminal proceedings against the 24 nominees to the Cabinet. The vetting committee reported that the DPP did not reply to their request for information. Well, that man will soon be vetted for the office of Director General in charge of the National Intelligence Service. Kenyans will be invited to share their views about his candidature.

I have a few questions: What are the metrics of analyzing public participation? How do public authorities define the scope of argument by the participants? Whose voice carries the day? Is it the compelling desire of those in power or the compelling arguments of the public participants? Is it just a formality or there is real consideration of views?

You see, the National Assembly vetting committee had recommended rejection of Peninah Malonza as Cabinet Secretary for Tourism, Wildlife and Heritage on account of her weak comprehension of the task at hand.

The committee’s minority membership had also rejected the nomination of Agriculture Cabinet Secretary Mithika Linturi and Public Service CS Aisha Jumwa. Their basis were that the two did not satisfactorily respond to questions on criminal cases against them and integrity questions raised by the public and the committee.

But in one afternoon, a vote by acclamation passed the entire Cabinet list. Now, if a vote between the Ayes and Nays overturned the considered opinions of elected Members of Parliament, what would it do to amorphous and uncoordinated views from the public?

Who will MPs listen to? Will they listen to the President or the opposition leaders? Will they listen to MPs on the majority side or the minority side? Will they read the tweets by Kenyans or views of Kenyans on FM radio stations? Will it be the Ayes have it or the Nays have it? Whatever the case, there will be consequences and one can only hope that this time round, public participation will make sense, at least for once.