The law will kill public participation

The Constitution imposes an obligation on the State to facilitate the participation of the people in governance, law-making and policy-making. This obligation is articulated in Article 10, Article 118 and Article 232. The Constitution does not mandate that a law be enacted to provide for the manner in which the participation of the people shall be facilitated. In my opinion, it does not require a law for the people to participate in governance, law-making or policy-making.

It is not always good idea to legislate the implementation of the obligations of the State. Laws are terrible tools; they limit you to what is enacted, and they can, quite often, prove very inflexible when they are being interpreted, applied, administered or enforced. Despite the lack of a written public participation law, Kenyans have forcefully inserted themselves in the affairs of the Government. The most obvious way that they have done so is through public interest litigation. But maandamano, with the police beatings, shootings, and malicious prosecutions that ensue, have proven a much more effective form of participation of the people, one that has compelled the Government to concentrate its mind in ways that have been very disconcerting and uncomfortable.

I am not opposed to legislation; but seeing the way legislation has been watered down, ill-drafted, mutilated by amendments, undermined by official disinterest and damaged by constitutional petitions, legislation almost always has unintended effects that negatively impact the stated object of the legislation. If Kenya enacted a written law on participation of the people, it is almost certain that the law will be hijacked by the Government and the overall object of fostering transparency and accountability in governance, law-making and policy-making will be severely watered down. Just look at how difficult it is to recall an elected parliamentarian despite the fact that there is a whole written law for that purpose (Part IV of the Elections Act, Cap. 7).

It is not the law that confers on us a right to participate in the affairs of our government; it is our inherent citizenship which the State can neither deny nor revoke that confers on us that power. We are sovereign, regardless of what the legislation enacted state, and our sovereignty grants us the right to weigh in on any matter of national importance without mediation by an Act of Parliament. Attempts to legislative the form of the participation of the people (or the consequences of that participation) will lead to one inevitable outcome: the criminalisation of specific acts of participation that the State has attempted, in various forms, to abrogate and suppress. Worse, where the outcome of the participation of the people is programmed into the legislation, we will spend so much time on the technicalities and administrative nature of that participation that we won't notice that we have lost sight of the forest for the trees.

In Kenya, the way in which laws are designed is intended to undermine fundamental freedoms and rights of the individual, especially when it comes to any attempt to hold State officials to account for their acts of commission and omission. What many citizens believe will be a boon to public participation will come to haunt them if it is enacted. Instead, I would advice that the process of engaging with the State, its officials and its institutions should proceed without any of the shackles of an Act of Parliament but instead through the development of a civic culture (and a robust public interest litigation tradition).