Processing of Security Laws shows contempt for the public

The passage of the controversial Security Bill justifies a revisit of the meaning of public participation, a right that has come under question in the manner in which the Bill was processed.

Public participation is a political principle, which has now been recognised as a constitutional right, the right to public participation. The objective behind public participation is to facilitate the involvement of those potentially affected by or interested in a decision. In pursuance of the principle of public participation, persons affected by a decision have a right to be involved in the process leading to the decision.

The constitution of Kenya employs three main approaches towards securing public participation. First, the constitution declares the right and thus removes its observance from the arena of choice, making it an obligation.

Secondly, the constitution establishes thresholds of transparency which constitute a process right, and whose effect is to increase public participation. Article 35 provides the right to information held in public hands, and also to private information if this is needed to protect a right. Thirdly, the constitution establishes institutional arrangements that are informed by, or which promote, public participation as an end.

DEAL WITH DEVOLUTION

The principal institutional arrangement for public participation in the new constitution is the set of provisions that deal with devolution.
The constitution requires Parliament to “conduct its business in an open and transparent manner,” and stipulates that “its sittings and those of its committees shall be in public”. It also requires Parliament to “facilitate public participation and involvement in the legislative and other business of Parliament”.

The provisions on public finance also identify principles that guide all aspects of financial management. These include “openness and accountability including public participation in financial management.”

Provisions on the management of natural resources, contained in the chapter on the management of public land, require the state to “encourage public participation in the management, protection, and conservation of the environment.”

The constitution also introduces values and principles for the management of the public service including “involvement of the people in the process of decision-making” and also “transparency and provision to the public of timely, accurate information.”

The constitution prohibits Parliament from excluding the public, or the media, from any of its sittings “unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion.”

PUBLIC PARTICIPATION

Public participation is further enhanced through the provision of the right to petition the legislature. The constitution allows “every person”, the right to “petition Parliament to consider any matter within its authority, including enacting, amending or repealing any legislation.” Parliament is under constitutional obligation to give procedural effect to the manner in which this right is to be exercised.

Practitioners and academics have grappled with how to measure public participation in a variety of situations. In other words, how will a public entity, say Parliament, know that it has complied with the obligation to allow public participation?

The literature identifies three stages in the provision of this right. These are, first, the entity must furnish the public with all relevant information concerning a matter that requires a decision; second, the entity must provide opportunities for public consultation, and thirdly, the entity must provide opportunities for “active participation”, which involves ensuring that citizens actively engage in decision- and policy-making in an advanced two-way relationship. This implies that the public is entitled to feedback regarding its concerns on a matter.

While the processing of the Security Bill met the technical compliance required for the enactment of legislation, no meaningful opportunity was provided for public participation in its processing within the Assembly.

MASSIVE FAILURE

Further, before the Bill was taken to the Assembly, there was a massive and unexplained failure to allow participation. Ideally, the government should have championed a major policy statement explaining the problem and also giving notice of the proposed legislative measures, as would be necessary to resolve the problem.

Given the propensity for misunderstanding, the President would have been wise to provide a detailed explanation of the problem as he saw it, and also a detailed rationale for all the proposed solutions.

As happens, the President initiated a rushed legislative process whose purpose was never explained, and when resistance occurred at the legislative stage, extreme measures, including the cordoning off of the legislative chamber, were resorted to.

Whatever one thinks about the content of the Security Bill, its processing shows contempt for the public, and represents a major failure in the duty to allow public participation.

While opposition to the Bill inside the legislature was expressed in a manner that the President has correctly described as “deplorable”, he would do well to recognise his own personal failures and the failures of the legislature which his party controls, all of which encouraged the failures of others.

Only the Jubilee Alliance and President Uhuru Kenyatta is in government. By being in power, the President has the obligation to lead sensitively, ensuring that he carries as many people with him as possible. However, the President has used the Jubilee dominance in a crushing and insensitive manner that humiliates the opposition and further balkanises the country.

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