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).

Omtatah's legacy

Senator Okiya Omtatah Okoiti, MP, has contributed immensely to the principle of participation of the people as contemplated in Article 10 of the Constitution. Through his public interest suits in the Constitutional Court, he has helped to demystify what the State can and cannot do. In the years since he was elected as senator, he has turned his public-spirited focus on the national Budget. Whether or not he has a firm understanding of the constitutional and statutory framework underpinning the budget process is irrelevant; he has compelled the Government and citizen alike to pay attention to sometimes hard to grasp concepts relating to the raising of national revenue, the appropriation of public funds, the allocation of public money to public goods and services, and the role of the citizen.

His success in the Constitutional Court in 2023 is a testament to how much even the Judiciary has come to appreciate the role of the citizen in budget-making. The injunction on the implementation of various sections of the Finance Act, 2024, have concentrated some minds, while others are still stuck in the pre-2010 constitutional past, where they imagine fiat is all that is needed to get things done.

In 2023, when the National Treasury proposed the "affordable housing levy", bar one or two misguided trade union bosses, Kenyans rejected the levy in toto. They said so unequivocally. The Finance and Planning Committee of the National Assembly pretended to take the people's objections to heart. But rather than remove the offending proposed law from the Finance Bill, they made it even more draconian: a mandatory tax without even the possibility of a refund or the certainty of access to an affordable house by the taxpayer. That dishonesty is partly why the High Court declared the affordable housing tax to be unconstitutional and annulled it. The Court of Appeal after the traditional period of stay of orders pending appeal had lapsed, was not convinced to extend the stay, and the offending tax was abolished. It has resurfaced as a law unto itself (and Sen. Omtatah is fighting that one as well in the Constitutional Court; may he taste victory once more and have the Affordable Housing Act, 2023, annulled by the Constitutional Court, again).

In 2024, seemingly without having taken heed of the lessons of 2023, the National Treasury has proposed a motor vehicle tax (previously christened "motor vehicle circulation tax"). The rate is set at 2.5% of the value of the motor vehicle, with a floor of 5,000 shillings and a ceiling of 100,000 shillings. Every single Kenyans who has been asked (bar one or two truly misguided souls) has rejected the tax, the rationale for the tax, and all exhortations to see it as a net-positive good. The Finance and Planning Committee, once again, pretends to care to listen to the vehemence expressed by Kenyans against the proposed tax (and all the other retrogressive tax proposals contained the Finance Bill, 2024). Kenyans await with bated breath the Report of the Committee on the Bill that is going to be tabled in the National Assembly at the Second Reading.

What is becoming increasingly clear is that Kenyans are taking ever keener interest in how the Government makes decisions. While the organs of Government are yet to fully embrace more direct participation of the people in their affairs, some of them have began to change the way the decide matters affecting Kenyans' lives. They are inviting, and incorporating, more public input on policy, legislative and regulatory proposals than in the past. This may complicate Government decision-making, especially with regards to its foreign obligations, but no one can argue that it is a net-negative thing. The whole point of participatory democracy, the kind contemplated by the Constitution, is that the purpose of the State is to serve the public good, rather than the State serve itself with or without the permission of the public. Sen. Omtatah is unlikely to be celebrated in full in his lifetime, but may his public-spirited legacy last a millennium.