Kenya’s 2010 Constitution makes public participation in decision-making a cardinal virtue of the new order, but it does little to define it.
For this reason, there has been some discussion about drafting and adopting a law on public participation, or at least some form of official policy.
In the meantime, however, various agencies are moving ahead to define public participation as they see fit, either in practice, or through sector-specific laws and regulations.
Perhaps the most important sector in which public participation must be defined is public finance.
This is because the crux of devolution for many Kenyans is a more equitable distribution of resources that actually serves the needs of citizens.
At county level, then, public participation in financial matters is a key element in the theory of government (enshrined in the Constitution) that translates devolution of resources into improved well-being.
Although government is yet to publish the final version of the Public Financial Management Act, approved and signed over a month ago, we have a good idea of what it says.
One thing that it almost certainly contains is something called a County Budget and Economic Forum, which is described in the last known version of the law as a “means for consultation” with the public on county strategic plans and budgets.
The description of the forum in the law is minimal, so much of the detail of how it will work is left to regulations. But there is enough in the law to cause consternation on the part of non-state actors.
As a result, ten organisations have come together to issue a joint statement on how we think the forum should be structured and to lay out a set of principles for public participation more broadly.
These organisations – Institute of Economic Affairs, Institute for Social Accountability, Haki Jamii, African Centre for Open Governance, National Taxpayers Association, Kenya Land Alliance, Clarion, Muslims for Human Rights, Twaweza and International Budget Partnership – believe that the budget forum must be carefully regulated to ensure that it does not become simply an extension of the Governor’s power, but facilitates true participation and consultation in the budget process.
The budget forum as structured will consist of the County Executive Committee members, the Governor, and appointees of the Governor. The number of appointees is equal to the number of County Executive Committee members, meaning that the Governor has the deciding vote.
Our first concern is that this structure lends itself to dominance by the Governor. We are aware that politicians can and do organise their own “interest” groups to support them politically, and there is nothing to prevent the Governor or close allies of the same from creating organisations to nominate members to the budget forum.
Based on the experience of CDF, many citizens fear that a structure like the forum will become a space that is dominated by the Governor and his/her allies, rather than a genuine participatory space.
To prevent this, we suggest that members of the forum be vetted by the county assembly, that they be required to disclose their assets, that they serve for one, non-renewable term, and that there be limits on the number of representatives who can come from a single organisation or ward within the county.
We also think it is vital that the forum be understood as a convener of, not a substitute for, public engagement. The budget forum can never adequately represent county inhabitants, nor is it a substitute for the county assembly. What the forum can do is to organise and structure public inputs into the planning and budgeting process.
We believe it should be specified in the regulations that the budget forum must organise consultations around specific issues and at specific times throughout the planning and budget process, so that citizens can input into formulation and implementation throughout the year.
For effective participation, there are two matters that are of the essence that the law ignores. The first is access to information: citizens must have access to all available plan and budget documents to be able to deliberate properly and provide valuable inputs.
This must be guaranteed by regulation. Second, citizens must be given this information, and notified of opportunities (and venues) for engagement, in a timely fashion, allowing them to adequately prepare. We believe two weeks should be a minimal standard for advance public notice.
This builds on helpful guidelines from the existing Local Authority Service Delivery Action Plan process, which, however, have not always been implemented.
We go into greater detail in our joint brief than is possible here. We urge interested citizens to read and discuss the principles of public participation we have put forward.
Jason Lakin is programme officer at the International Budget Office.