While the framers of the Constitution had envisioned that public participation in law making process would help citizens feel more connected to their government, there is a justifiably feeling that lawmakers are only concerned with helping themselves and fellow political and economic elites than working for constituents.
Public participation was designed to give citizens a stronger stake in the outcome of policymaking and also provide them with another opportunity to make their voice heard beyond casting a periodic vote but more Kenyans are expressing cynicism about government institutions.
Now, the attorney-general’s office has published a public participation policy draft inviting the public for opinions and reviews and in the documents it acknowledges that the realization of effective public participation as contemplated in the Constitution is yet to be achieved at both levels of government.
The risk of having an ineffective public participation is that it decreases public confidence in turn contributing to a growing sense of disconnectedness between people and the government, damaging the integrity of participatory democracy. So, there are two proposal Kenya can consider in looking at how to strengthen public participation.
First, US Senator from Massachusetts, Elizabeth Warren, has a bill before US Congress that is said to lay ground work for new progressive vision to restore the principle of the government “of the people, by the people, and for the people.”
The bill offers direct participatory opportunities to ordinary people to contribute to substantive outcomes of individual rules by creating a process known as notice-and-comment rulemaking where any government agency working to revise a proposed rule into a final rule, it must demonstrate that it actually considered any legitimate points that were raised by the public.
In Kenya, though there is a notice-and-comment participatory procedure it is just for show because there is broad discretion for lawmakers to decide how and which comments to adopt, or even, whether to adopt comments at all. Thus, the scope and extent of the public comments’ influence on the final legislation passed cannot be observed or assessed.
Therefore, there is need for a clear responsibility for publicizing all comments received and then which comments were adopted. This will go a long way in increasing public participation and transparency in the lawmaking giving the outcome of legislative process deep and meaningful level of legitimacy. Preparing a public explanation of how the public’s input was considered should not require much extra effort. Second, another lawmaking reform Kenya should adopt is for the public to be allowed to be part of the legislative agenda-setting by submitting their proposals about what should be prioritized in parliament’s annual calendar plan.
For years now, the House Business Committees of Parliament stand accused of always protecting the interest of the executive when prioritizing bills and motions to be discussed. A parliamentarian a few weeks ago accused the National Assembly’s House Business Committee that its been two years since he submitted his petition but its yet to be considered because it touches on the interest of some political elites.
Personally, I have an experience of the Clerk of Senate blocking my petition for consideration, exercising powers he doesn’t have, curtailing efforts of the public to be part of the legislative agenda.
The National Assembly is on record admitting that there are numerous public petitions that stand pending for many months now, which will never get to the floor of House. So, public input in agenda-setting process therefore must be allowed if lawmakers want to increase overall transparency and responsiveness in legislation to restore the overall health of participatory democracy.
More fundamentally, these two rulemaking reform proposals will help in the gradual institutionalization of transparency in public participation during the lawmaking process and represent progress towards modernizing our governance system.