A Critical Review of Public Participation Legal Framework Initiatives at National

and County Level

Douglas Lucas Kivoi

Governance Department,
2019/2020 Workplan
Kenya Institute for Public Policy Research and Analysis
Bishops Garden Towers, 2nd Floor
Bishops Road
P.O. Box 56445-00200
Nairobi
Tel: +254-20-2719933, 2719934
Email: admin@kippra.or.ke

www.kippra.org

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Contents ..................................................................................................................................... 1
Abbreviations and Acronyms ............................................................................................ 3
Abstract ............................................................................................................................... 4
1.0 Introduction ................................................................................................................... 5
1.1 The Genesis of Public Participation in Kenya ............................................................. 6
1.2 Research Problem ........................................................................................................ 7
1.3 Objectives of the study ................................................................................................ 8
1.4 Research Questions ...................................................................................................... 8
1.5 Methodology ................................................................................................................ 8
2.0 Literature Review .......................................................................................................... 9
3.0 The Theory of Citizen Participation ............................................................................ 12
4.0 Public Participation and the Constitution of Kenya................................................. 14
4.1.0 Legislative Framework for Public Participation in Kenya ...................................... 14
4.1.1 Public Finance Management Act 2012 ................................................................. 16
4.1.2 Urban Areas and Cities Act 2011............................................................................ 17
4.1.3 County Government Act 2012 ............................................................................... 18
4.1.4 Public Participation Promotion Actors.................................................................... 19
4.1.4 Emerging Issues and Policy Gaps ........................................................................... 20
4.2 Impediments to Effective Public Participation ......................................................... 20
5.0 Conclusion................................................................................................................... 23
5.1 Policy Recommendations .......................................................................................... 23
References ........................................................................................................................ 25

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Abbreviations and Acronyms
CDF: Constituency Development Fund
CFSP: County Fiscal Strategy Papers
CBEF: County Budget Economic Forum
CIDP: County Integrated Development Plans
DFRD: District Focus for Rural Development
ECA: Economic Commission of Africa
IAP2: International Association for Public Participation
IDPS: Integrated Development Plans
KSG: Kenya School of Government
LASDP: Local Authority Service Delivery Plan
NG-CDF: National Government Constituencies Development Fund
PFM: Public Finance Management
SPAN: Social and Public Accountability Network

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Abstract
Public participation remains the biggest hallmark for devolution in Kenya. It sought to
involve citizens in governance through inclusive decision making, planning,
budgeting and project monitoring and implementation.Meaningful citizen
participation in governance is critical in fully operationalizing and enjoying the
ingredients of the constitution of Kenya promulgated in August 2010. It should be
noted that various pieces of legislations anchoring devolution highlight the principles
of citizen participation. Together, these constitutional and legislative provisions avail
various platforms for citizen participation in devolved governance. Citizen
participation is one of the national values and is also one of the principles of public
service as articulated in the Constitution in Articles 10 (2,a) and Article 232 (1). This
study reviewed provisions in the Constitution and existing legislation on public
participation. The study identified frameworks, including processes and platforms put
in place by the National and county governments with the objective of facilitating
public participation in governance processes. The findings and emerging issues
informed the policy recommendations

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1.0 Introduction
Citizen participation in governance is a key ingredient for public reforms that were
instituted by the Constitution of Kenya (CoK) 2010. Article 1 (1) of the Constitution vests
all sovereign power to the people of Kenya, meaning that no decision can be made
by a public institution without involving citizens.
Constitutional and legislative provisions avail various platforms for citizen participation
in devolved governance. Citizen participation is one of the national values and is also
one of the principles of public service as articulated in the Constitution in Articles 10
(2,a) and Article 232 (1).
Due to lack of proper public participation strategy in policy making and service
delivery design, in many countries, there has been a problem responding to the
individual’s relevant needs at the grassroots level (Kathryn, 2016). This system of
governance denied the public the necessary involvement in governance due to
dictatorial leadership.
At independence in 1963, Kenya was a constitutionally devolved state with various
regions (majimbo) vested with responsibilities of collection of taxes and provision and
maintenance of basic social services (health and education) and rural roads. In
December 1964, the country reverted to a centralized system of government with the
regions becoming provinces as had been the case earlier. In the subsequent year,
the government formulated a premier policy paper, Sessional Paper No. 10 of 1965 on
African Socialism and its Application to Planning in Kenya,(Republic of Kenya, 1965)
in which it was stated that the power to control resource use resided with the state
but planning was to be extended to the provinces and local authorities. The 1971
report on public service structure recommended that the planning process be
extended to the district and divisional levels.
Public participation did not begin with the new constitution in 2010. Various strategies
had been tried to allocate resources to the sub-regional levels of governance since
independence, (Oyugi, 1992, Chitere et al,2013). One of these strategies was the
District Focus for Rural Development (DFRD) which became a major instrument of
design and management of rural development in Kenya in 1983 (Chitere et al. 2013).
The DFRD was a form of decentralization in which the institutional and organizational
transformation was established to encourage public participation in the development
process. This strategy tried to increase transparency and accountability in service
delivery despite the fact that it had its own challenges.

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The DFRD strategy sought to increase citizen involvement in governance but it was
met with a lot of challenges which included weak collaboration of stakeholders, poor
monitoring and evaluation of projects, lack of information access, clarity of
stakeholders roles, lack of public awareness and lack of frameworks for conflict
management resolution strategies between the stakeholders and government
agencies (Lineth et al.,2013). This study will review provisions in the Constitution and
existing legislation on public participation.

1.1 The Genesis of Public Participation in Kenya

According to Wakwabubi and Shivelenje 2003, public participation in Kenya had
been confined to community development projects which were mainly donor
funded. In essence there was no public participation for government funded projects.
Kenya first attempted to entrench public participation through decentralizing some
of its planning through various ways, First, through the District Focus for Rural
Development (DFRD) Strategy operationalized in 1983. One major shortcoming with
this strategy it was the involvement of the national government in planning and
implementation of development programs and never bothered to get the input and
buy in from the local communities who were the intended beneficiaries of those
development projects. Thus, to Chitere and Ireri (2004) this in essence militated against
public participation. They argue that in public participation, the government helps
facilitate the process by assisting and empowering communities to identify their
development challenges and come up with possible solutions. Also, it should be noted
that DFRD did not have a legal anchor rather it was done administratively. This in
essence meant that lack of legal mandate to ensure continuity of government
pronouncements on public participation meant most of the initiatives at that time
were not sustainable in the long run since it depended on political good will
Later, Some acts of parliament were enacted to give public participation a legal
aspect.
The legislation of the Physical Planning Act in 1996 meaningful entrenchment of public
participation in the country. This act laid the foundation for the direct participation of
communities in the planning and implementation of both physical and development
plans of the government. Its major shortcoming was the lack of public awareness
creation as to what were the direct roles of communities. Also, even though physical
planning was devolved to local communities, the very beneficiary of this exercise
remained marginalized in public participation in planning (Okello 2008)

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For along time, Local Authority Service Delivery Plan (LASDP) and Constituency
Development Fund (CDF) remained the only vehicles for public participation at
community level. The LASDAP was introduced in 2001 through a ministerial circular
whereas the CDF was established in 2003 through the CDF Act (2004). The LASDAP
involved three year rolling plans that were required to have a poverty focus with
priority areas in health, education and infrastructure (Kibua and Oyugi, 2006). The
LASDAP provided opportunities for the local communities to meaningfully in matters
of planning, budgeting and development (Ministry of Local Government, 2009). The
Local Authority Service Delivery Action Plan (LASDAP) waswas actualised in 2001 in
order to facilitate citizen participation in identifying their local development priorities.
Even though the LASDAP process was perhaps the most comprehensive tool
encompassing citizen participation in planning, selection, implementation and
oversight of projects in local authorities, it has been argued that it never achieved
much due to the capture by elites and apathy by the citizenry.
The CDF Act (later renamed National Government Constituencies Development Fund
(NG-CDF)) on the other hand targeted constituency level development projects
particularly those geared towards poverty eradication at the Constituency,
community level. The constitution promulgated in August 2010 was a big milestone in
institutionalizing citizen participation in planning, budgeting and implementation of
government programs at all levels of government. This also was critical in ensuring that
citizens own development programs initiated by the two levels of governments at
community level.

1.2 Research Problem

Public participation is enshrined in the constitution of Kenya. In Sessional Paper No. 10
of 2012, the long term development blueprint, Vision 2030 are the guiding
development blue prints of the county. The plan has the guiding principles of
devolution, to take account of local needs and priorities in development, and public
participation in governance as a means of ensuring continuity across national and
county governments leading to the year 2030 (Republic of Kenya, 2012). Devolution
aims at transforming Kenya into a nation with transparency, accountability
governance that enhances service delivery to the citizens and facilitates inclusivity in
government

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According to the Social and Public Accountability Network (SPAN), 2010, even though
devolution was widely embraced by the people of Kenya, it has come with
challenges. Devolution process has lacked proper frameworks and platforms for the
design and implementation of systems and structures. County governments have
reported a lack of funding and human capacity to conduct proper public
participation. Even though most counties have Public participation units/offices, it has
been a challenge for counties to engage their citizens in key decision-making
processes and to address issues like social accountability, development agendas,
resource mobilization and utilization, amongst other challenges facing communities
within counties (Ronoh, Mulongo, and Kurgat, 2018).

This study seeks to review the various public participation initiatives rolled out
by the government through the enactment of the various constitutional and
legal acts to operationalize participation of citizens in planning and
development

1.3 Objectives of the study

To analyze provisions in the Constitution and existing laws anchoring public
participation both at County and National level
To provide recommendations for policy considerations

1.4 Research Questions

What are the various legislative framework enacted to operationalise public
participation?
What are the challenges facing the operationalising of public participation in
kenya?
What are the possible policy interventions to enhance public participation in kenya?

1.5 Methodology
The study utilized both desk review and secondary methods to collect data.
Secondary data used included a review of the Constitution and legal framework put
in place by the Government of Kenya to facilitate effective public participation and
information dissemination framework at both levels of government (National and
County). It has also a reviewed of several documents developed by the county
governments. Key among these were Bills, Acts and policies. Some of the key
legislations reviewed include Public Participation Acts or Bills, County Planning Bills
and Policies, County Monitoring and Evaluation Bills and Policies; and County Public

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Communication Bills and Policies among others both at national and county level. The
analysis will include identification of gaps, conflicts and challenges that may be
impeding the success of public participation as envisaged in the constitution.

2.0 Literature Review

Public participation is a principle that has been given prominence in the Constitution
of Kenya 2010. Article 10 (2) of the Constitution provides that public participation is a
national value and principle of governance. The Fourth Schedule of the Constitution
gives County Governments the power to ensure and coordinate the participation of
communities in governance at the local level and assisting communities to develop
the administrative capacity for the effective exercise of the functions and powers and
participation in governance at the local level. The Public Finance Management (PFM)
Act, 2012 provides for public participation in public financial management and in
particular: the formulation of the County Fiscal Strategy Papers (CFSP), County Budget
Estimates; County Integrated Development Plans (CIDP).

Creighton (2005) defines public participation as a process by which public concerns,

needs and values are incorporated into government and corporate decision making.
The International Association for Public Participation (IAP2) defines it as a process by
which agencies or institutions consult with interested and affected individuals,
organisations and government agencies before making a decision.

The County Government Act (Government of Kenya, 2012a), the Public Finance
Management Act (Government of Kenya, 2012b), and the Urban Areas and Cities
Act (Government of Kenya, 2011) have called for public participation in legislation,
determining budget priorities, ensuring that public-sector performance and
expenditures are reviewed and submitting grievances. In addition, County
governments have been tasked with ensuring that the public receives information for
public participation, setting in place structures and mechanisms and guidelines for
public participation and also providing an annual report on citizen participation to
the County Assembly. “Public participation” and “sustainable development” have
become central and interconnected terms in present day development discourse.
According to Economic Commission of Africa, ECA (2004), “public participation” has
been proposed as an essential pre-condition for sustainable development”.

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Public participation in Kenya’s devolved system of government has had its fair share
of challenges, such as limited support from the political class and low levels of civic
education (Kenya School of Government, 2015). However, there has been a success
story in Makueni County, whose public participation model has been lauded by the
World Bank (2016). In its model, the County has been able to have the citizens identify
their development priorities at the grassroots level, with the citizens becoming
involved in the prioritization, planning and setting of final expenditures for the
identified projects. the political pillar of the Medium-Term Plan III seeks ‘a people-
centred and politically- engaged open society’ (Government of Kenya, 2013: 107)
through enhanced public participation and respect for devolution
The main goals of public participation are to inform, engage, consult, collaborate and
empower the citizenry through different ways such as, elections, or civil society
activities where public input is sought at all stages of policy making. However, the
culture in public bureaucracy is not supportive of public engagement but relies on
standard information exchange channels like public hearings (Kathi and Cooper,
2005), which most of the time are one-way and are not oriented towards problem-
solving (Baker et al., 2005). Therefore, there is a need to transform that culture and to
ensure that citizens are partners and not just clients in the governance process through
meaningful public participation. Legal provisions, such as the County Government
Act (Government of Kenya, 2012a), the Public Finance Management Act
(Government of Kenya, 2012b), and the Urban Areas and Cities Act (Government of
Kenya, 2011) have been enacted to operationalize public participation.
Unfortunately, the presence of legally binding rules for public participation has not
translated into meaningful public participation. For example, a survey by
Transparency International, established that 83 percent of Kenyans do not know the
resources assigned to their County, with only 7 percent aware of their County’s Fiscal
Strategy Paper, 16 percent aware of the County Integrated Development Plan, and
41percent aware of the County’s budget. This dismal performance is related to the
finding that only 38 percent are aware of County meetings and only 15 percent
attend those meetings (Transparency International, 2016). In addition, the Policy on
Devolved System of Government (Government of Kenya, 2016) acknowledges that
the quality of public participation is low and has not been optimized due to low civic
awareness by the citizenry, uncoordinated civic education and challenges in
accessing information.

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Mugambi and Theuri (2014) analyse the challenges that County governments in
Kenya face during budget preparation. Using Kilifi County as a case study, and
employing a descriptive analysis, they found that, although budget procedures were
present, public participation in the process was absent. Elsewhere, Muriu (2014) used
cross-regional data to assess the impact of citizen participation on service delivery in
Kenya. He found that public participation had been lacking and its influence on the
decentralized system of government had been negligible. A study conducted by the
Institute of Economic Affairs, Kenya (Oduor et al., 2015), reviewed the status of public
participation and the available participation and information frameworks in Kenya’s
Counties through a qualitative study of Kisumu, Turkana, Makueni and Isiolo Counties.
The study found that Kisumu County had decentralized structures for public
participation down to the grassroots level.
According to the government of Kenya public participation guidelines (2010) it was
reported there had been low level of participation of citizens in the implementation
of projects in the past governments since there was no statutory guidelines on public
awareness, information access, stakeholder engagement and conflict resolution
management strategies to aid participation.
According to Rajesh Tandon, MohiniKak (2007) rationale behind public participation
is that involving the citizens in the decision making process, tends to promote
openness and accountability of political decision makers. As a result, county
governments are likely to be responsive to the citizens’ demands hence, more
responsive in service delivery to people. But Crook (2003) believes, devolution in Africa
does not automatically improve the local governance responsiveness. To him, Local
communities are required to be involved in the policy planning, organization,
coordination and implementation in order to increase oversight in provision of service
delivery to the people.
Maluka (2011) argues against the direct link between decentralization and
community engagement. His study findings showed that decentralization in whatever
form does not automatically provide space for community engagement.
According to World Bank (2015), the effect of public participation is determined by
availability and quality of information given to the participants by government
agencies. This is because, government is the major driver and actor in public
participation initiatives at all levels of governance.

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To John et al (2009), when communities are involved some come along with technical
expertise and specific knowledge about how decisions will affect certain
stakeholders, local experience and history or other specialized experience. Public
participation broadens knowledge base since involved communities serve as free
consultants to project management.
According to Hakijamii (2017), inadequate access to information by members of the
public, tokenism, lack of inclusivity of the marginalized and minority groups, heavy
political control of development processes discourage participation of residents on
project planning and implementation. Citizen’s will engage in public participation
forums if they know that their views will have influence during the decision making
process (McCosmas 2003). This is in agreement with Scicchitano (2014), whose study
established that citizens will not attend public participation forums if previously their
inputs were not taken into consideration during decision making.

3.0 The Theory of Citizen Participation

Citizen participation is a process which provides private individuals an opportunity to
influence public policies and has long been a component of the democratic
decision-making process. Public involvement is means to ensure that citizens have a
direct voice in public decisions. Many public agencies and individuals opt to exclude
or minimize public participation in planning efforts claiming citizen participation is
expensive and time consuming. Yet, many citizen participation programs are initiated
in response to public outcry due to an existing problem, proposed project or action.

It should be noted that, there are tangible benefits that can be derived from an
effective citizen participation program. Cogan and Sharpe (1986, p. 284) identify five
benefits of citizen participation to the planning process:

 Information and ideas on public issues

 Public ownership for planning decisions

 Avoidance of protracted conflicts and costly delays

 Reservoir of good will which results in sustainability of development projects

 Spirit of cooperation and trust between the government/public agencies and

local communities.

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There are two main broad decision-making structures namely: the technocratic
approach; and the democratic approach. Technocracy (or the technocratic
approach) is defined as the application of technical knowledge, expertise,
techniques, and methods to problem solving. Democracy, as defined by DeSario and
Langton, refers to citizen involvement activities in relation to government planning
and policy making (DeSario and Langton, 1987)

There are some scholars who favor a technocratic decision approach. A key
argument is that trained staff "experts" are best suited to make complex technical
decisions in governance. Experts are increasingly becoming a part of our decision-
making structures in both the public and private sectors (DeSario and Langton, 1987.).
However, Nelkin concluded that scientific and technocratic approaches "not only
failed to solve social problems but often contributed to them" (Nelkin, 1981). The
notion that the "cure is often worse than the disease" becomes increasingly important
as the technology provides alternative solutions to public policy issues.

Democratic decision-making, in contrast to bureaucratic or technocratic decision

making, is based on the assumption that all who are affected by a given decision
have the right to participate in the making of that decision. Participation can be direct
in the classical democratic sense, or can be through representatives for their point of
view in a democratic governance (Kweit and Kweit, 1986). Kweit and Kweit go on to
point out that criteria for evaluating policies in a democratic process are the
accessibility of the process and/or the responsiveness of the policy to those who are
affected by it, rather than the efficiency or rationality of the decision. It should be
noted that input from citizen groups outside government and public institutions helps
provide more comprehensive information on all aspects of the public analysis
process.

Public Participation Continuum

Publicity Public Education Public Input Public Interaction Public

Partnership
Building Disseminating Collecting Two-way Securing
public information information communication advice and
support consent
<----------------- PASSIVE ACTIVE------------------>

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4.0 Public Participation and the Constitution of Kenya
Public participation is a principle that has been given prominence in the Constitution
of Kenya. The principle of public participation is based on the fundamental human
right to hold and express their opinion and to seek, receive and impart ideas as
enshrined in Article 33 of the Constitution of Kenya, which provides for the freedom
of expression for all citizens of Kenya.
Article 10 (2) of the Constitution provides that public participation is a national value
and principle of governance. This participation involves both citizens and non-state
actors including but not limited to Faith Based organizations, Development partners,
marginalized groups, minorities, private citizens amongst other interested parties.
The Fourth Schedule of the Constitution gives County Governments the power to
ensure and coordinate the participation of communities in governance from the
county up to village/community level.

4.1.0 Legislative Framework for Public Participation in Kenya

There exists a number of legislations enacted by the National assembly and policies
developed by both the Senate, county governments and various public institutions to
operationalise and enhance public participation.

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Table 1: Legal Framework for Public Participation in Kenya
Constitutional Reference Provision
Article 1: Sovereignty It states that all power is vested in the people of Kenya
Article 10: National Values and Principles of Part (a): Participation of the people listed as a value
governance
Article 4: Bill of Rights Provides for Freedom of Expression
Article 35 Guarantees the right of every citizen to access
information held by the state
Article 61 Part (i) affirms that “All land in Kenya belongs to the
people of Kenya collectively as a nation, communities
and as individuals”
Article 69 Compels the state to encourage public participation in
management, protection and conservation of the
environment
Article 118 Provides for public participation and access to
parliament sittings and those of parliamentary
committees
Article 119 Provides for the right of citizens to petition a matter to
parliament
Article 196 Part (1) compels every County Assembly to conduct its
business in an open manner and hold its sittings and
those of committees in public, facilitate public
participation and involvement of citizens in legislative
business of the Assembly
Article 174 on Devolution The objects of devolution are to:
(i)give powers of self-governance to the people and
enhance their participation in the exercise of the
powers of the state and in making decisions affecting
them”
(ii)Recognize the rights of communities to manage their
own affairs and to further their development
Urban areas Act Sections 21 and 22 Part (1) states that “National legislation shall provide for
the participation by residents in the governance of
urban areas and cities
Article 201: Public Finance Provides for openness and accountability including
public participation in management of public finances
Article 221 (5): Budget Making Budget committee compelled to seek representation
from the public their recommendations/view be taken
into account
Article 232: Principles and Values of Public Citizens to be involved in policy making within the public
Service service
Fourth Schedule Part 2 County governments compelled to ensure the
participation of communities and locations in
governance at the local level
Article 129: Principles of Executive Authority States that executive authority derived from the People
of Kenya
Article 159: Judiciary Judicial authority drawn from the people of Kenya
County Government Act Sections 100 and County governments should create an institutional
101 framework for civic education.
County Government Act Sections 100 and County governments should create an institutional
101 framework for civic education.
Public Procurement and Disposal Emphasis on transparency of the procurement process
Act 2015 Section 68(3), 125(5), 138, including requirements for procuring entities to publicly
and 179 avail procurement records after closure of proceedings,
publicise notice of intention to enter into contract on
websites and public notice boards and publish and
publicise all contract awards.

Source: Ministry of Devolution and Planning (2016)

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4.1.1 Public Finance Management Act 2012
The Public Finance Management Act under Section 207 provides that County
Governments are to establish structures, mechanisms and guidelines for citizen
participation. Section 137 of the Public Finance Management Act established the
County Budget Economic Forum (CBEF) where representatives from Professional
bodies, business community, Faith based organizations and all interested groups at
community level have to participate in the County planning, budgeting process and
project implementation. According to Section 158 of the Act, the County Executive
Member of finance is mandated to establish guidelines that must be followed in the
county budget making process. These guidelines are required to give candid
information on how communities and citizens participate in the budget making
process. The CEC is to circulate regulations on how communities will participate in the
budget process and how their views will be accommodated after the citizen
participation forums. CBEF is supposed to convene public participation forums and
not to represent the public in those forums.
The CBEF is required to produce and disseminate a calendar with the dates and
venues for all consultations for the coming budget year. All consultations held by the
CBEF ought then to be preceded (at least two weeks in advance) by a public notice
that provides information about the nature of the consultation, an agenda for the
meeting, and summary of the key issues to be discussed by the community. Where
the consultation involves choices among priorities or over a particular allocations, the
relevant choices and budget information should be included in the notice before the
citizens come to the participation forum.
Section 205 provides for the Powers of the Cabinet Secretary, Finance to make
Regulations pursuant to the Act and Section 207 provides that such regulations may
provide for participatory governance for purposes of the Act in financial
management. They include but not limited to:
 Structures for participation
 Mechanisms, processes and procedures for participation
 Receipt, processing and consideration of petitions, and complaints lodged
by members of the community
 Notification and public comment procedures
 Public meetings and hearings

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  Special needs of people who cannot read or write, people with disabilities,
women and other disadvantaged groups
 Matters with regard to which community participation is encouraged
 The rights and duties of members of community
 Any other matter that enhances community participation.

Both the National government and County governments are to ensure that every
financial year, there is public participation in the budget process right from the
community level at the County.

4.1.2 Urban Areas and Cities Act 2011

It should be noted that Kenya has had some form of Local Government since 1902
(Mboga H, 2009) though these have undergone changes over time some due to
political expediencies. The management of Urban Areas and Cities in Kenya has been
through the 175 Local Authorities established by the Local Government Act Cap 265
of the Laws of Kenya. The Urban Areas and Cities Act, 2011 operationalizes Article 184
of the Constitution of Kenya. The Act provides for: the classification, governance and
management of urban areas and cities; the criteria for establishing urban areas and;
the participation of communities in the management of urban areas and cities.
Section 36 of the Urban Areas and Cities Act compels county governments to involve
citizens and local communities in the development of Integrated Development Plans
(IDPS), that guide the budgeting process within given financial years. The Second
Schedule to the Act provides the right of and participation by residents in the affairs
of the city or urban areas through the following mediums:
 Written or oral presentations
 City or urban area is obligated to develop a system of governance that
encourages participation by communities in the planning and running of
day to day affairs
The 2nd Schedule of the Act provides for the rights of and participation by residents
in affairs of their city or urban areas. The Second Schedule of the Act provides for the
rights of, and participation by residents/communities in affairs of their urban areas and
cities. The Act also provides for avenues of public participation such as citizens fora,
development pacts and MOUs (Memorandum of understanding) signed between
public service providers and representatives of citizens/communities.
The Urban Areas and Cities Act, Section 48 requires the establishment of municipals
and city boards. Municipal and city boards should make public their annual audited

17
financial statements; to be published in two major public dailies, as well as on Board’s
website, and in a conspicuous place at the Board’s office. At the moment no county
government has set up a municipal or city board.

4.1.3 County Government Act 2012

The County Government Act 2012 compelled County Governments to create a
conducive environment for the participation of citizens in the governance and
decision-making processes within Counties. Section 87 of the County Government
Act 2012 provides for citizen participation at the county level based on the following
principles:
 Shared responsibilities and partnership between county governments
and non-state actors in decision making
 Reasonable access to the process of formulating and implementing
policies, laws and regulations
 Protection and promotion of the interest and rights of minorities,
marginalised groups and communities
 Timely access to information, data, documents and information relevant
to policy formulation and implementation
 Avenues for legal redress to interested or affected persons or
organisations
 Promotion of public private partnerships in service delivery to citizens
Also, Section 88 of the County Governments Act has empowered citizens with the right
to petition the county government on matters under the responsibility of the county
government as far as devolved functions and service delivery is concerned. As such
Article 89 of the Act compels county government officers to respond to all and
challenges from citizens within their areas of jurisdiction. Article 90 of the Act allows
counties to conduct referendums on local issues affecting communities. This is yet to
be done by any of the of the forty seven (47) county governments.
Article 91 of the Act provides the following minimum framework to be set and used to
reach out to the public as an invitation to engage in county affairs. They include but
not limited to:-
 Establishment of citizen forums at county and decentralised units
 County hall meetings
 Notice boards, vacancy announcements, job appointments
 Tenders and procurement awards

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  Development project sites
Article 196 of the constitution of Kenya compels County Assemblies to conduct
business in an open manner and hold its sittings and those of its committees in public
and facilitate public participation and involvement in the legislative and other
business of the assembly and its committees. Among the measures the County
Assemblies ought to institute in order to enhance citizen participation include but

not limited to:

 Providing a platform for citizens within Counties to access and participate in
activities of the Assemblies
 Conducting public education and provide information about the Assemblies
and its work
 Facilitating public input and feedback
 Providing ground and logistical support for Assembly programs and activities
 Co-ordinating and co-operating with other levels and units of government
 Publicising their willingness to receive submissions from citizens on legislation
and other matters, and giving advice on how to do it

4.1.4 Public Participation Promotion Actors

In Kenya these are a number of key actors that are involved in the promotion of public
participation. They are but not limited to:
 The Government: The national and county governments should take all
necessary steps to ensure that the public participation concept is realized
within its organs. This concept is envisaged in the 2010 Kenyan Constitution.
Therefore, the state should provide mechanisms for the public involvement in
its affairs. The tools above will only be realized if the government, both national
and county, are committed to ensuring transparency, accountability and
public participation at all levels
 Civil Society Organizations: These are usually deemed at the fore front for the
formation of the public watchdog groups and the citizen advisory groups. They
enhance public participation at the grass root level all the way up to the
national level.
 The Private Sector: The private sector is usually the backbone of any economy.
They usually offer continued support, monetary or otherwise to foster
participation in the country. Their aim is to ensure there is democracy and
citizen empowerment. They also participate in the Citizen Advisory Boards.

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  Empowered citizens: Citizens can also be drivers of public participation when
they agitate for debate on resolution of issues affecting their livelihoods within
communities where they reside

4.1.4 Emerging Issues and Policy Gaps

The following policy issues emerged during the scrutiny of the legal documents that
entrench citizen participation in governance both at national and county level:
 There is no provision for a recourse mechanism where action can be taken
against public bodies and/or public officers who is deliberately withhold and/or
hides information from citizens
 There is no section in the act that compels both the national and County
governments to designate funds for smooth implementation of public
participation
 There is also no section in the various acts that compels both levels of
government to continually be sensitizing communities and public office holders
on the critical importance of public participation
 Each county has its peculiar and specific challenges which requires that each
county domesticates public participation in ways that are peculiar to its needs.
This is because come Counties due to cases of historical marginalization may
not be having the infrastructures to fully embrace public participation and as
such may see budgeting for public participation activities as a waste of
resources which should used to build infrastructures like road networks, health
service facilities amongst other devolved functions
 Since there exists no sanctions for public bodies and individuals who fail to
involve citizens in decision making, there is little incentive to encourage public
institutions and public office holders to embrace citizen participation

4.2 Impediments to Effective Public Participation

Even though public participation is a critical ingredient of good governance, there
exists impediments to its realization. According to Sisk (2001), the following are some
of the key challenges to effective public participation in planning. They include but
not limited to:
 Payment for participation: Some members of the public expect some of
payment or compensation in order to attend public participation forums. This
in essence undermines the principal objectives of ensuring that participants
give meaningful contributions during public participation forums. If citizens opt

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 to stay away from public participation forums due to lack of payments from
organisers then it makes it difficult for them hold their leaders accountable and
in the process improve on the quality of governance.
 Apathy/Negative Attitude from Citizens: Most citizens lack an understanding of
that public participation constitutes and its impact to the quality of
governance. Also, a number of government agencies and officers never give
feedback to communities on how their contributions were utilized in say budget
making processes. This then makes communities feel that nothing comes out of
those public participation forums.
 Challenges in accessing information: There is an apparent lack of information
on budgeting processes, policies and general framework needed by citizens in
order to enable them participate effectively in public participation forums. For
example, the form in which some documents, like budgets, are presented it
makes it difficult for ordinary citizens to comprehend not unless they have a
background in finance and budget making.
 Cost of Participation: It should be acknowledged that public participation has
huge budgetary implications especially for the national government and also
expansive Counties like Turkana, Wajir, Isiolo, Samburu among others. Given
that there other competing development programs, some officers opt to
prioritize them during budgeting and leave out public participation.
 Insufficient Representation: some constituencies within counties and even at
the national level are never included in decision making processes during
public participation forums. Some are not even invited to come and present
their views.
 Capture by the Elites: it has been argued that public participation foras are run
by vested interest groups who determine who is to be invited so as to influence
direction of the entire decision making processes. In some extreme cases, it is
not uncommon to see specific faces and groups being the only invitees in
public participation forums, since their presence benefits particular groups with
hidden agendas in service delivery
 Lack of Public Participation Standards: even though there exists a national
policy for public participation, there is a lack of a coordinated framework and
standards to guide the process because all the 47 counties are differently

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 unique and what works for a county like Nairobi may not work for a county like
Mandera or say West Pokot.
 Literacy Levels: many rural and pastoral communities may not meaningfully be
engaged in public participation forums due to illiteracy and semi-literacy
levels. This creates a language barrier making it harder for them to engage
government officers on technical policy matters especially in communities
where the is little or no civic education carried out in local language on the
policy issue to be addressed in the public participation forum.
 Bureaucracy in Government: Bureaucratic processes in government when
transacting public matters slow down implementation processes of the views
collected from citizens. This may then discourage citizens from ever engaging
in public participation forums.
 Toxic Relationship between the government and citizens: Relationship between
both levels of government and citizens have always been strained. Citizens
blame both levels of government as being insensitive to their plight since
communities believe that government officers only use those public
participation forums to justify expenditure/mismanagement of public funds.
Communities have this “belief” that the two levels of government do not
understand their grievances hence never factor them in government planning
and expenditures.
 Insufficient decentralisation of public consultations: In most cases at the county
level public participation forums are held at the County level and exceptional
cases being held at the Sub-County level. This locks out majority of communities
who stay in remote rural areas at the ward and community/village level.
Communities find it hard to travel to county level or sub-county levels.
 Lack of incentives and skills among government officers to encourage them
to adopt a participatory approach to governance. This is because, Public
participation requires a set of skills amongst public officials to be able to
interact with diverse communities and understand dynamics of the society.
Without incentives, government and public officers will not go an extra-mile to
involve the public. Lack of community engagement skills also compromises
effective public participation.

Other challenges include among others, resource constraints; abuse of participatory

structures by community elites and opportunists; marginalization of communities from

22
decision-making; legitimacy of structures, through which the public participates. In
addition, lack of transport for members of the public to attend public participatory
forums and utilization of ward committees as platforms is also a challenge.

5.0 Conclusion
Public participation is one means of decreasing tension and conflict over public policy
decisions. Even though various acts have been enacted by the national assembly
and policies developed, there are still challenges in operationalising it. The findings of
this study are critical in enhancing public participation in kenya and inproving the
inclusion of citizens in governance.
The institutionalization of public participation in governance is still problematic. The
major problem of public participation is its implementation. All the actors need to be
involved in enhancing public participation. Enhanced citizen participation will reduce
the gap between the rich and the poor. Enhancing participation is a roadmap
towards good governance, responsive policies and improve the quality of life of
citizens by prioritising their needs.

5.1 Policy Recommendations

This study makes the following policy recommendations:
 County governments ought to develop a wide platform on which to exercise
their individual opportunities and frameworks that will realise public
participation within communities since all the forty seven counties are not
homogeneous but rather heterogeneous.
 There is need to sustain citizen participation through adequate financing and
resource allocation. County Assemblies should pass a legislation that ensures
that every finance year budget funds are allocated for public participation
which should be a continuous activity.
 Both National and County governments need to develop a mechanism to
sanction public officers who deliberately withhold information from citizens
and/or avoid involving citizens in decision making and governance.
 Each county government should develop its own unique public participation
mechanisms that are unique to its own development needs. This is because the
forty seven (47) are not homogeneous but rather heterogeneous.
 County governments ought to abide by the Access to Information Act 2016 by
being proactive in releasing any information that will make the capacity of
citizens to participate in public participation better

23
 County governments are closer to communities hence need to strive and
make public participation a mandatory accessible process in terms of location,
time and mode of communication. Such should not be treated as an exercise
to pay people for attendance. Allowances should be made to specific unique
cases which are justifiable.
 Non-State actors should partner with the two levels of government and make
civic education a mandatory continuous exercise which will in turn improve on
the quality of contributions from citizens during public participation forums
 There is need to develop feed back mechanisms for citizens to see how their
inputs in various development programs and policies have been incorporated
into government plans

 A national Public Participation framework ought to address the issue of

diversity in citizen participation forums and how all constituencies can be
adequately represented
 Both national and County governments should strive and simplify formats of
availing information to communities and where possible have it translated into
local languages

24
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