TITLE: DEVOLUTION IN KENYA AS A MEANS OF ENGENDERING PUBLIC

PARTICIPATION IN GOVERNANCE.

CHAPTER

1.1 INTRODUCTION

In the pre-colonial system of governance, Kenya was divided into provincial administration and
Districts. The provincial administration, which was the bedrock of colonial administration, was
under the control of the governor.

The administration police formed an important part in the provincial administration. There were
no fully established laws to govern the provincial administration. The absence of some laws in the
provincial administration, as well as restrictions on the activities of the provincial administration,
provided room for the provincial administration to rule the people of Kenya as they felt fit. The
Kenyan People felt that the provincial administration governance was no different from that of the
colonial agencies.1

In 1962 Majimbo took root2 and Kenya African Democratic Union (KADU) chaired by Ronald
Ngala formed a coalition with the Kenya African National Union under the leadership of Mzee
Jomo Kenyatta. In addition a new constitution was adopted with new form of governance was
adopted.3

1
An article by the Star Newspaper headed “History of Devolution” dated 20 th April 2013 by Professor Yah Pal Ghai
2
‘Majimbo’ is a Swahili word for ‘regions’ commonly used in Kenya to refer to the idea of political devolution to the
country’s regions. Alleged by former vice president Oginga Odinga to be a phrase coined by the by the European
settlers in Kenya’s white highlands. Provincial commissioner was the most powerful in the province and the District
commissioner was the most powerful in the District.
3
The Kenyan legislature became bicameral subject to the 1962 constitution. It consisted of a 117 member house of
representatives and 41 senate members. Further there were 7semi-autonomous regions each with their own regional
assembly. Open elections were held in 1963 after the quota principle of reserved seats for non-Africans was
abandoned.
During former President Moi’s era,4 power was abused both economically and politically due its
centralization in the office of the president. The citizens of Kenya demanded for power to be shared
and dispersed both vertically and horizontally.5

Research carried out by the Constitution of Kenya Review Commission (CKRC)6, found that the
Kenyan people felt distant from the central government and marginalized. In addition the CKRC
research established that, the Kenyans did not approve the provincial administration system, which
was seen as the hand of the president’s office. Hence this ignited the need to have decisions brought
closer to them.

After decades of content debating, Kenyans finally voted in a new constitution on August 2010.
The new constitution has catapulted the country to democratic governance. The constitution vests
all sovereign power to the people of Kenya7. As per Article 1(2) of the constitution, this authority
can either be exercised directly by the people or through their democratically elected
representatives.8 However, this authority should be exercised within the parameters of the

4
Daniel Tortich Arap Moi was born 2nd September 1924. He is a Kenyan Politician who served as the second
President of Kenya from 1978 to 2002. He has also earned the sobriquet ‘professor of politics’ due to his long rule.
5
In the 1990’s famous Safari Park National Conference, devolution was adopted as an objective. The Constitution
Review Act 2000 required the Constitution of Kenya Review Commission to consider people’s participation through
devolution of power and as well respect for ethnic and regional diversity and communal rights including cultural
activities and expression of their identities.
6
The Constitution of Kenya Review Commission (CKRC) was established legally under the Constitution of Kenya
Review Act (CAP 3A) on 10th November 2000. The mandate of the commission amongst other things included
promoting people’s participation in governance through democratic, free and fair elections, devolution and exercise
of power. The commission went around the country and collected views from the Kenyan people between December
2001 and July 2002. The final draft of the report of the findings of the CKRC was issued on 10 th February 2005. This
report can be found online at www.mlgi.org.za/...Kenya/commission-reports.
7
Article 1(1) of the Constitution Of Kenya “all sovereign power belongs to the people of Kenya and shall be exercised
only in accordance with this constitution”
8
The authority is exercised both at the National and County level. Kenya has a bicameral system with two houses.
Article 93 of the constitution establishes the Senate and the National assembly which shall perform their respective
functions under the Constitution. The National Assembly represents the people of the constituencies under Article 95
of the Constitution of Kenya. The senate represents the counties and protects the interests of the counties as per Article
96. The National Assembly consists of two hundred and ninety elected members and 12 nominated ones, while the
Senate consists of 47 elected members, 16 nominated women and two youth members of both gender and two both
gendered members representing the disabled. In addition there is the county assembly and county executive established
under Article 176(1) of the Constitution of Kenya which forms part of the county government. The county assembly
as provided for under Article 177(a &b) consists of members elected by the registers voters of the wards each ward
constituting a single member constituency; and a number of special seat members to ensure not more than two thirds
of the members are of the same gender. In addition the County Government Act in section 7 provides that the county
assembly shall comprise of 6 nominated members from marginalized and people with disabilities and the youth as
contemplated by Article 177(c) of the Constitution of Kenya.
constitution, including the national values and principles of governance articulated in Article 10
of the constitution9.

Inasmuch as the national values as per Article 10(2) amongst other things embrace inclusiveness
and participation10, the process of implementing the constitution requires more and is a national
effort that demands active participation by the people.

Furthermore, participation in governance has social, political and economical impact on the
livelihood of its citizens.11

This thesis aims at looking at ways of enhancing public participation in various avenues of
governance in Kenya, as there have been gaps in effecting the process of devolution as far as
citizen participation is involved. The process of democracy itself of voting for leaders and letting
them run the show for the rest of the citizens has proved inadequate over the years, therefore this
thesis looks at ways of enhancing citizen participation beyond the macro-political processes such
as regular elections. In addition to the above it aims to look at ways of enhancing the relationship
between the citizens and the various structures of governance so that the citizens benefit through
active participation and influence governance decisions that affect their daily lives. The bottom
line of this thesis is to look at various approaches into enhancing public participation in
governance.

Based on the above background, this thesis aims to answer the following questions.

What is the public when we talk of public participation? - is it the adult population? Is it Social
civic group speaking for and in the name of the public? Is it the voting population of the country?
Is it all the people in the territory?
Is there a need for a legal framework in public participation?
How effective participation in governance can be enhanced in both the National and county
government?
How effective participation in governance can be enhanced in the public private partnership?
How effective participation in governance can be enhanced in minority and marginalized groups?

9
The National values and principles in article 10 bind all state organs, state officers and public officers.
10
The constitution of Kenya 2010
11
Decentralization and Devolution in Kenya- Thomas N
1.2 LITERATURE REVIEW

Various scholars have expounded on the effectiveness of citizenry participation in governance.

One common ground that the various scholars hold is that public participation is essential to
achieve full implementation of the constitution. They further aver citizenry participation is crucial
for achievement of good, transparent, accountable governance; this thesis has borrowed heavily
from various scholars as follows:

The ICJ Handbook on Devolution12 expounds on the concept of devolution and the various
legislation touching on devolution in Kenya. It gives a detailed explanation of the previous
structure of government and the current structure under the new Constitution 2010. The book as
well looks at the provisions in the constitution that touch on devolution and public participation
on matters of gender equality.13It has as well looked at other legislations on public participation14.
The book has built up this thesis to clearly bring out the various loopholes in devolution and in
particular in the research on enhancing public participation.15

Thomas N Kibua and Germano Mwabu in their reports on recent decentralization and devolution
innovations in Kenya expound on devolution16. Their notions has contributed to the deeper
understanding of the concept of devolution in Kenya, and therefore enables easier research into
ways of enhancing public participation which is at the core of devolution.

12
Kenyan Section of the International Commission of Jurist (2010) Handbook on Devolution, Kenya, Kenya Section
of International Commission of Jurists
13
The Constitution in Article 27 states that ‘women and men have the right to equal treatment, including the right to
equal opportunities in political, economic, cultural and social spheres’. Moreover, it discourages the state or any other
person from discriminating either directly or indirectly on grounds including among others sex, ethnic origin, culture,
age, pregnancy, marital status or any other ground.
14 The County Government Act provides further guidelines for the realization of the goal of the Constitution of ensuring the participation of the people in governance
. For
instance in section 87 it outlines principles that public participation shall be based on. They include Timely access to
information, Reasonable access to the process of formulating and implementing laws and regulations, protection and
the promotion of the interests of the minorities, legal standing to interested and affected persons amongst others.
15 Public participation is at the core of Kenya’s new Constitutional dispensation. Art. 10 of the Constitution states that it is one of the national values and principles of governance
.
16
Thomas N Kibua and Germano Mwambu (2012) Decentralization and Devolution in Kenya. It describes the current
structure of devolution in Kenya. In creates a deeper understanding of the concept of devolution in Kenya
In the report of the conference on the development of public participation which was held on 24th-
26th September 2012 at the Great Rift Valley Lodge, Naivasha Kenya, various points were raised
as regards public participation. The conference was under the stewardship of the Commission on
the Implementation of the Constitution. Representatives from both the government and Non-State
Actors were involved.17

This thesis has borrowed a lot from this conference report as regards ways of enhancing public
participation and various ideas shared by the scholars has assisted in suggesting of effective
methods of enhancing citizenry participation.

Annete Omollo looks into the current structure of public participation and the strengths and
weaknesses in this structure18. The paper has assisted this thesis in analyzing the eight approaches
that the thesis uses to enhance the process of public participation and make suggestions on what
can best be done in achieving this.

Otieno Freidrick Omondi19 expounds on citizen participation in Constituency Development Fund

(CDF) as a way through which democracy can be deepened and hence contribute to the growth of
the economy and as well the national democratic culture.20 The paper has endowed this thesis with
findings on research on public participation at the grassroots level and the various loopholes and
solutions that can be applied to enhance public participation particularly in the management of
CDF.

17
The conference composed of the Ministry of Justice, the Katiba institute, Collaborative Centre for Gender and
Development(CCGD),Kenya National Civic Education Programme (URAIA) and the Kenya National Human Rights
Commission (KNHRC). The objectives of the conference was to provide an opportunity of the government, various
stakeholders and non-state actors and international experts to share their experiences on the principle of public
participation, and come up with the most suitable plan of action into enhancing this principle in Kenya’s governance.
The report was published by the Constitution of Implementation Commission. It can be acquired from
www.consitutonet .org/ …report on development of a framework on public participation.
18
Annete Omollo (2011) Policy proposals on Citizen Participation in Devolved Governance in Kenya, Nairobi,TISA
. The paper gives proposals on how public participation can be effected. The main body of the paper discusses eight
thematic areas which are also the approaches that this thesis takes in looking into ways of effecting participation.
19
Otieno, Fredrick Omondi,(2013) "Deepening Democracy at the Grassroots Level: Citizen Participation in State
Devolved Funds (CDF) In Kenya" Pan African Studies - Thesis. Paper 1
20
The CDF program in Kenya was established in 2003 when a new regime with overwhelming national mandate
replaced an authoritarian system under Moi’s regime that had been in existence for twenty four years. But the seeds
of exclusion, what in Kenya had been historically referred to as “siasa mbaya maisha mbaya” a Kiswahili phrase
warning regions in Kenya opposed to the ruling party of dire material conditions, had long been planted by the first
post-independent state. Otieno suggest suitable citizenry participation policies that will ensure proper utilization of
the CDF into proper economical development.
Odhiambo M and Taifa A21 address the issue of devolved funds and how the public should be involved
in the financial management of the devolved funds. Odhiambo’s argument has enabled this thesis to
expound clearly on the need of citizenry participation in financial management and its necessity in
economic building of the nation.

Iraki, Xn22 argues that devolution will cost more than the proponents of devolution expected in
Kenya. He argues that he highly doubts that the national government will keep off from the affairs
of the county government regardless of the decentralized system in place23. He further contends
that this will water down the devolution process and important aspect such as public participation.
His arguments has contributed to this thesis in pointing out the loopholes in financial management
and how the economic problem can be resolved and the appropriate financial management process
that can be determined through citizenry participation.

Krzysztof Stanowski24 is effecting democratic change throughout Central and Eastern Europe by
creating a network of volunteer groups comprised of educators and civil leaders. Krzysztof
believes that such networks of committed individuals can help restore the region’s frayed social
bonds, solve pressing problems, and by strengthening collaboration across borders, encourage
civic action in the face of rising national and regional prejudices. Stanowski’s approach and
reasoning, resonates with this thesis in the suggested approach of composition of citizen
committees to enhance participation. This thesis borrows the methods applied by Krzysztof to be
used to enhance citizenry participation in Kenya.

Goldfrank contends that the process of what he calls deepening democracy moves from the regular
elections to get far into building strength into citizenship and building a real democracy25. By
strengthening citizenship he refers to the process of transforming citizens from passive society
who just follow what the political leaders dictate but rather actively engage with the highest
echelons of power, and the citizens’ voice to be heard in the decision making process and make

21
Odhiambo, M. and Taifa, A. (2009) Devolved Funds Development 21: A Handbook on Participation. Nairobi:
Claripress
22
Iraki Xn (2010) Will Devolution Solve our Economic Problems
23
Iraki argues that the central government bureaucracy has been replicated in the 47 counties. According to him,
someone has to pay for that and thus the economic support will be a real problem. He argues further that countries
like the USA manage the decentralized system due to their large size and high economic power.
24
Krystonov Stanowski(2002) Learning about democracy
25
Deepening Local Democracy in Latin America: Participation and Devolution by Benjamin Goldfrank
demands in decisions that affect their lives. This thesis has borrowed Goldfrank’s ideas that have
enhanced public participation in the inter-American system that would immensely enhance public
participation in Kenya as well once applied.

Valenzuela stresses the importance of public participation especially by the poor who are often
overshadowed by the powerful and cannot access political power.26 Valenzuela’s emphasis is
shared with the same degree in this thesis on how public participation can be enhanced in politics
and what can be borrowed from Latin America.

Robert Tannenwald paper examines the recent debate on fiscal responsibilities from U.S federal
governments to the states. 27 The paper looks at the greater flexibility in for states in making use
of federal grants in a more economical way. The paper presents citizen participation as a way of
ensuring accountability. This thesis has borrowed a lot from this paper as far as fiscal
responsibility is concerned and has highlighted several policies that Kenya could borrow to
enhance public participation in financial management and ensure accountability.

The Organization of American States (OAS) looks at the Promotion of Public Participation in
decision making for Sustainable Development28. The paper encourages civil society, the public
sector and the private sector to actively participate in governance for sustainable development to
be achieved. The paper quotes principle 10 of the 1992 Rio Declaration that environmental issues
are best handled by inclusion of all concerned citizens at relevant level.29 This thesis has borrowed
various ideas used by the Inter- American system in particular Latin America in enhancing the
core principle of public participation to achieve sustainable development.

Robert H Milles 30contends that the executive cautious management culture in coming up with big
ideas or taking major steps for fear of failure is what causes slow growth of economy. He proposes

26
Valenzuela (May 2002), Enhancing Political Participation in Democracies; what is the role of social capital, USA,
Sage Publications
27
Tannenwald Robert(February 1, 2001) Devolution in the United States; Theory and Practice, USA, SSRN
28
Organization of American States(2001), Inter-American strategy for the Promotion of Public Participation in
decision making for Sustainable Development, Washington DC, OAS
29
In addressing the environmental issues emphasis should be placed on access to information, access to process
and access to justice. In Agenda 21, the plan of action accompanying the Rio Declaration, governments pledged to
pursue broader public participation in decision-making processes and policy formulation for sustainable
development, understood as development that meets our present needs without compromising the ability of future
generations to meet theirs
30
Robert H. Milles (2010) Accelerating corporate transformation (Don’t lose your nerves (six mistakes that can derail
your company’s attempts to change). USA, Harvard Business review
that safe passage should be given to employees to be brutally honest with how the organization
should move forward and contribute ideas. This thesis borrows heavily from Robert ideas of
inclusion of the people in governance that is a roadmap to good and accountable governance.

The institute for social accountability (TISA) 31 breaks down how public participation can be
enhanced through various ways such as capacity building and awareness. The paper has
contributed immensely in this thesis in finding effective ways of enhancing public participation.

This thesis uses the constitution as the major point of reference in doing the research and the
various proposals that are made in the thesis to ensure they are constitutional.

Abers32 acknowledges that their can be internal conflicts that will cause the process of acquiring a
well functioning participatory framework take time to be fully established.33 The paper by Abers
has developed this thesis idea of civic organization and community partnership with governance
as a suitable way of economy and political growth, and in achieving a thorough comparative
analysis of Kenya with Latin America and assess what Kenya can borrow.

1.3 METHODOLOGY

Secondary data collection- The data in developing this thesis have been acquired from reading
and analysis of various articles, journals, books and reports which have guided this thesis to
develop.

Comparative analysis- This thesis will compare the Kenyan system of Devolution with that of
the Latin America. The purpose for using comparative analysis as a method of analysis for this
thesis is due to the fact that devolution is a new concept in Kenya’s governance. It would then

31
TISA (2010) Policy and legislative Proposals aimed at Sound Planning, Accountability and Citizen
Participation in County governments
32
Abers (October 2007) Participatory Democracy in Brazil and local Geographies, Brazil, C EDLA
33
Abers’ research examined the transition from clientelism to cooperation in Porto Alegre, Brazil, specifically how
participatory policy led to the emergence of a culture of civic organizing. The research observed initial skepticism
among residents, which changed gradually due to encouragement from the government and because of noticeable
benefits to groups which participated. Neighborhood associations started holding large and regular meetings and
thereafter started to promote activities that went beyond the budget discussion. Abers observed that the motive of
obtaining localized benefits broadened and the people started thinking about the whole district and about how
neighborhood groups could work together to realize their potential. Abers sums up the civic organizing as having
reflected not only in the way people voted but also the way they perceived the process of deliberation
only make sense to understand the concept by looking at states which have applied the concept for
years and learn from them the challenges they faced over the years and how best they have
addressed them to effect devolution process and in particular public participation.

This thesis uses Latin America as a comparison because historically the defining characteristic of
Latin America has been inequality with it termed as 3rd world country despite its proximity to the
other giant states of the USA. Latin America had been infested with poverty just like in many
countries in Africa. Not only has poverty been the problem but as well the political sphere which
has been in the hands of the powerful few. This is in no way different from the historical injustices
of my Mother country Kenya.

The situation in Latin America has, however, substantially improved over the years.
Encouragement from Government and participatory process gradually changed and uplifted Latin
America both politically and economically.34 Kenya having gone through similar historical
injustices can borrow a lot from Latin America in addressing the loopholes in devolution and in
particular for the purpose of this thesis, in enhancing public participation.

34
Local organizing group presence mattered in Latin America. There are positive results from the presence of civil
society in the promotion of processes of participation. First, there is the effect of scrutiny which is as a result of two
or more persons analyzing a policy. In addition there would be higher degree of co-operation from civil society groups.
Finally, the same presence also acts as a guarantee of the significance of the experience because local groups usually
will not waste time in poorly planned processes with uncertain effects. Genuine participation needs the role of local
organizing civil groups which uplifted Latin America immensely.
1.4 CHAPTER OUTLINE

The thesis has five chapters:

CHAPTER1: INTRODUCTION

This chapter looks at the rationale, literature review and methodology. It gives an abstract of the
thesis; the introduction gives a brief history of devolution in Kenya. The chapter answers the
argument of the thesis and what it aims to achieve. Various literature reviews are analyzed and
how they would assist in developing this thesis. The chapter, on methodology lists secondary data
as one of the methods and comparative analysis of Kenya with Latin America as the other and
gives reasons for the comparative analysis with Latin America.

CHAPTER 2: LEGAL FRAMEWORK OF PUBLIC PARTICIPATION IN KENYA

Chapter two of this thesis is solely dedicated to Kenya. It briefly discusses the current structure of
public participation in the devolved system of governance. The chapter discusses public
participation in the various structures and the existing legal framework that guide them. These
include the Constitution of Kenya, the County Governments Act 2011, the Election Act 2011,
Urban Area and Cities Act no 13 of 2011 and the Public Financial Management Act.

CHAPTER 3: A CRITICAL ANALYSIS OF THE CHALLENGES AND LOOPHOLES OF

PUBLIC PARTICIPATION IN KENYA

It discusses the various challenges and loopholes that face the process of public participation in
the decentralized structure of governance discussed in chapter two. The chapter discusses the
weaknesses of the process of citizen engagement and the gaps in place.

CHAPTER 4: PUBLIC PARTICIPATION: A COMPARISON OF KENYA AND LATIN

AMERICA

This chapter is on comparative analysis of Kenya with Latin America. The chapter looks at what
Latin America has done to enhance the process of public participation and what Kenya can borrow
to fill the gaps that have been discussed in chapter three. It also discusses various other
improvements that can be made to enhance citizenry participation.
CHAPTER 5: POLICY RECOMMENDATIONS ON PUBLIC PARTICIPATION AND
CONCLUSION

The final chapter discusses the impact of active and deepened public participation in the various
levels of governance on the Nations welfare. It proposes recommendation on how public
participation can be enhanced and governance opened up to public participation and the
conclusion.
CHAPTER 2

2.1 THE LEGAL FRAMEWORK OF PUBLIC PARTICIPATION IN KENYA

Public participation is a core principle under the new constitution and a major component of the
devolution process. The process of devolution in Kenya is based on the supremacy of the
constitution, sovereignty of the people and the process of public participation.35 The new
dispensation has heralded the dawn of an effective public participation in Kenya. The constitution
being the supreme law of the land creates a legal framework of participation that covers
governance extensively.

Kenya does not have an overall legislative framework that solely deals with participation.
However, there are various legislations that touch on the issue of citizenry involvement in
governance. Most of these legislations are rather general, often leaving it to the bodies directed to
consult, to set up systems themselves. As well it is important to note that, access to justice, though
not the focus of this thesis is an important issue in participation. Article 48 of the Constitution of
Kenya provides that the state shall ensure access to justice for every person and any fee required
should be reasonable and not impede the process of access to justice.

The constitution of Kenya recognizes public participation as a national value and principle.36
Participation is used in the constitution in three ways. Firstly it is used to cater for increased
democratic representation, focusing mainly on gender equality37. The constitution of Kenya
promotes gender equality and participation of women in governance; through the principle of not
more the two thirds of the members shall be of the same gender as provided for in Article 81b, as
regards elective public bodies.

In addition, the Constitution in its aim to achieve this has had several provisions, they include;
aiming to achieve at least 5% representation of persons with disability in elective and appointive
bodies38, the not more than two thirds principle of any elected body to be of the same gender, the

35
Article 1 of the Constitution of Kenya vests all sovereign power to the people of Kenya. The people may exercise
this power directly or through their democratically elected representative as provided for in Article 1(2) of the
Constitution. Further, this sovereignty is exercised both at the National and County level(Article 4 of the
Constitution)
36
The Constitution of Kenya in Article 10 on National Values and Principles includes participation as one of them
along with equality, human dignity, equity, social justice, inclusiveness, human rights, non discrimination and
protection of the marginalized. Others include good governance, transparency, accountability, patriotism and
sustainable development amongst others.
37
Article 27 of the Constitution, acknowledges that men and women have equal rights which includes all aspects of
life be it political, social, economical or cultural areas. It further prohibits discrimination on grounds of sex, age,
culture, gender amongst others.
38
Article 54 of the Constitution addresses the persons with disabilities and in subsection 2 it calls for progressive
implementation by the state to ensure at least 5% of persons with disability are represented in both elective and
appointive bodies. Further Article 97 on the members of the national assembly requires 12 nominated members
downsizing of geographical constituencies to be more equal in size, the system of county
governments which is composed of the county executive and the county assembly, the special seats
provisions and the right of all persons to participate in the political process.39

Furthermore the object of devolution also brings out this 1st aspect of widened democratic
representation. These are as provided for under Article 174 of the Constitution and include, giving
people the power of self governance and enhancing people’s participation in the exercise of the
power of the state and in decisions that affect them, recognition of the rights of communities to
manage their own affairs and finally the protection of the rights of minorities and the marginalized.

The second aspect of how participation is used is generally in all matters of life and the community
at large. The focus here is on the marginalized part of the society.40 The new Constitution of Kenya
caters for the needs of this people through provisions on affirmative action. The state is required
to take legislative action to ensure that the provisions such as youth representation in political,
economical and social aspects are put to effect41.

Furthermore Article 56 requires the state to take affirmative action in ensuring that the
marginalized and minorities take part in all spheres of life.42 The constitution goes further on and
protects the rights of the older people as well. It requires of the state in Article 57 to take measures
to ensure that the old participate fully in the affairs of the society, pursue their personal
development, be free from abuse through protection of their dignity and receive reasonable
assistance and care from their family and the state. When it comes to persons with disability, the
constitution requires that the state ensures that persons with disability are represented in elective
and appointive bodies as provided for in Article 54 (2). In addition, the provision on representation
in the constitution as well caters for participation by persons with disability as covered in the first
use of participation to widen democratic representation.

inclusion of which some will be from persons with disability. In addition Article 98 on the senate members requires
inclusion of one man and one woman from persons with disability.
39
Article 176 of the constitution establishes the county governments, hence bringing governance closer to the
people. Further in Article 92, political parties must have a national character and indulge participation by the people.
The number of constituencies and boundaries shall be proportional to the population quota as per Article 89 of the
Constitution. The Independent Electoral boundaries Commission is mandated to review the boundaries and must
take into account the views of the interested parties, and progressively work towards ensuring the number of
inhabitants is equal to the population quota. In Article 89(12) population quota is the number of inhabitants in Kenya
divided by the number of wards or constituencies.
40
The marginalized people are those that have not been able to participate in the economic, social or political aspect.
For various reasons, be it historical injustice or poor representation or past discrimination, these people are
considered not to have been able to participate fully in the integrated social and economic spheres.
41
The state shall take measures to ensure that the youth take part in education, access employment and are protected
from harmful cultural processes. These are provided for under Article 55 of the Constitution.
42
The state shall ensure protection of the marginalized through legislations that ensure access to health, water and
infrastructure, special opportunities in educational and economic fields, participate and be represented in governance
, develop their cultural values and languages and as well access employment activities( Article 56 of the
Constitution of Kenya).
In addition the fourth schedule of the Constitution, on the powers and functions of the county
government, requires the county government to ensure participation and co-ordination of the
community in governance at the local level. It also requires the county government to assist the
communities to develop capacity to effectively exercise participation in the local process. 43

There are other relevant aspects that fall generally on the use participation by the constitution in
the involvement of life and community. The critical one is on the prohibition of discrimination,
where everyone has inherent dignity and the right to have that dignity respected and protected.
This can be interpreted to mean in the context of participation, that people’s dignity need be
considered before any decisions that affect them are made. There is also a duty placed on all the
state organs and public officers to address the needs of vulnerable group within the society.44

International instruments to which Kenya is party to subject to Article 2(6)45 of the constitution
play an important role in emphasis of the importance public participation. A good number of
treaties stress the importance of participation. The International Convention on Civil and Political
Rights (ICCPR)46 in Article 25 protects the right of every citizen to take part in the conduct of
public affairs directly or through democratically elected representative without any unreasonable
restrictions. Article 25 not only “guarantees right but also the opportunity to take part in public
affairs, this then imposes the obligation on the states to take steps to ensure that their citizens take
part in participation”.47

In addition Article 27 of the ICCPR protects the rights of the marginalized and the minorities, to
be allowed to enjoy their own culture, practice their religion or to use their own language. Article
27 implies to safeguard the continual survival and development of cultural, religious and social
identities of the minorities. Therefore, this Article further implies that the minorities need to
effectively participate in decisions that affect them to be able to enjoy this right. 48

43
The 4th schedule of the Constitution of Kenya, Part 2, section 14
44
This is found in Article 21(3) of the Constitution of Kenya. The vulnerable groups referred to include women,
older members of society, persons with disabilities, children, and youth, members of minority or marginalized
groups and members of particular ethnic, religious or cultural communities.
45
Any treaty or convention ratified by Kenya shall form part of the law of Kenya under its constitution.
46
ICCPR is the main treaty in civil and political rights. It is a human rights treaty adopted by the United
Nations General Assembly on December 16, 1966, and put into force on March 23, 1976. This crucial treaty outlines
some broad and fundamental civil and political rights than all humans should enjoy, including the rights to self-
determination, to life, to found a family, to participate in the electoral process, and to due process and a fair trial. In
addition to many more rights and freedoms, it provides for equal protection and enjoyment of these rights by
women, men, children, and minorities
47
This was a statement by the South African Constitutional Court in the case of Doctors for Life International v The
Speaker of the National Assembly Case CCT 12/05, paragraph. 91.
48
Kenya is a party to several treaties which include, International Convention on Civil and Political Rights(ICCPR)
which is a multilateral treaty adopted by the United Nations General Assembly on 1996 and came into force in 1976,
Apart from the supreme law of the country, there are other acts that create a legal framework for
public participation. At the county level there is the County Governments Act 2012 which
primarily deals with matters of county governance. The act defines the meaning of public as far as
participation in the county governance is concerned. It lists several categories of the public in the
county, which include; residents of the county, rate payers of a particular city or municipal, civic
organization, non-governmental organization or labor organization interested in the governance of
the county or city and non-residents persons who subject to their presence in the county have
temporarily used the services of the county, city or municipal.49

The County Government Act in section 87 goes on to outline the principles that citizen
participation shall rely on. They include, timely access to information, reasonable access to the
process of formulation and the law, promotion and protection of the minorities and the
marginalized, legal standing to affected persons with emphasis on the marginalized, reasonable
balance in the roles and obligations of county government and non state actors, promotion of public
private partnership and recognition and promotion roles of non state actors’ participation and
governmental facilitation and oversight.

The constitution of Kenya promotes the principles in section 87 of promoting citizen participation
in various ways.50Article 118 and 196 bars the parliament and the county assembly from excluding
the public or media from its sitting respectively.51 Furthermore section 15 of the County
Government Act promotes citizenry participation. It gives the person the right to petition to the
county assembly to consider any matter within its authority.52

The act empowers the participation of the electorate into decisions that affect him by giving him
the right to recall the member of a ward. Section 27 of the County Government Act provides for
the right to recall a ward representative by the electorate under various conditions. The conditions
as provided under section 27(2) include; violations of the principles of chapter 6 of the

it commits its parties to respect the civil and political rights of its citizens, the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) adopted in 1979, it protects women against discriminations,
protects the rights of persons with disability, the African Charter on the Rights and Welfare of the Child which
solely deals with protection of the rights of a child and the Maputo Protocol adopted by the African Union as a form
of protocol to the African Charter on Humans and People’s Right. It guarantees political, social and economical
rights to women.
49
This is found in the interpretation part at section 2 of the County Government Act 2012, Laws of Kenya.
50
The constitution in Article 118 requires the parliament to conduct its sitting in an open manner, and facilitate
participation in the legislative process. In addition in Article 196 of the constitution, it requires of the county
assembly to conduct its sitting in an open manner and as well facilitate public participation.
51
Parliament and the county assembly can exclude the media only when the speaker has determined that there is
justifiable reason to do so.
52
A person may petition to have legislation at the county assembly to be enacted, amended or even repealed as
provided for under section 15 of the County Government Act. It is the duty of the county assembly to come up with
a procedure to follow during a petition to the county assembly.
constitution53 by a ward member, when a ward member commits an offence under the Elections
Act or mismanages public resources.54

There is also the Election Act 2011 which provides for participation of the citizens in matters that
affect them. Section 45 of the Elections Act, provides the electorate the right to recall his member
of parliament under the same conditions as that of recalling a member of the ward. Just as in the
case of a member of a ward, only the high court can initiate a recall of a member of the parliament
upon confirming the grounds of recall.55

Moreover, under section 88 of the County Government Act, the people can petition the county
government on any matter under the county’s responsibility. 56Section 89 of the Act places a duty
on the county government to respond expeditiously to petitions and challenges from the Citizens.
There is also a provision of a local referendum at the county on petitions.57

Further, public participation in county planning processes is mandatory subject to section 113 of
the County Government Act. In achieving this, it requires it be done with clear and unambiguous
information on planning. As well it requires clear strategic environmental assessment and impacts
assessment reports. It also requires expected development outcomes and possible costs reports.

Most importantly, the county government act, goes on to give the kind of platforms that shall be
used by the governments to facilitate the process of citizenry participation. This platforms include;
information communication, town hall meetings, budget preparation and validation fora, notice
boards used for announcing jobs and other important announcements of public interest,
development projects sites, avenues for public participation not limited to the senate and the
national assembly and establishment of citizen fora at county and decentralized units.58

The Urban Area and Cities Act no 13 of 2011, bestows rights and duties on the residents of urban
areas on affairs of their city or urban area. This rights and duties are spelt out in the second schedule
of the act.59 Section 2 of the second schedule further encourages participation by the city residents

53
Chapter 6 of the Constitution of Kenya is on Leadership and integrity which amongst them is respect to the
people, brings honor to the nation and dignity to the office, and promotes public confidence in the integrity of the
office amongst others.
54
The recall of a member of a ward can only be initiated after the due process of the court. Section 27(3) of the Act
provides that the recall can only be done only after the findings of the High courts confirming the grounds of the
recall under section 27(2) of the Act.
55
This is provided in section 45(3) of the Election Act 2011 Laws of Kenya
56
Petition to the county government shall be made in writing to the county government according to section 88(2) of
the County Government Act. Furthermore, section 88(3) provides that the county government shall give further
effect to the right of petition to the county government.
57
The County Government Act in section 90 provides for matters that are subject to local referenda. They include
county laws and petitions (section 90 1(a) and decisions on planning and investment affecting the county, for which
a petition has been raised (section90 1(b).
58
These are spelt out in section 91 of the County Governments Act on ‘establishment of modalities and platforms
for citizen participation’.
59
The rights and duties include; contribution of decision-making processes by submitting written or oral
presentations or complaints to a board or town committee through the city or municipal manager or town
administrator; Prompt responses to their written or oral communications; be informed of decisions of a board,
affecting their rights, property and reasonable expectations; regular disclosure of the state of affairs of the city or
urban area, including its finances; Demand that the proceedings of a board or committee and its committees or sub
taking into account the vulnerable groups in the society i.e. the marginalized, disabled, illiterate,
youth and the minorities.
This principle of participation is further emphasized in the budgetary process under section 10 of
the Public Financial Management Act. This principle is further heralded in section 35 and section
125.60
Furthermore, down at the constituency level, the public can participate in decisions that affect them
in several ways. Section 24 of the Constituency Development Act, provides for room of being
nominated or nominating a person who would serve in the Constituency Development Fund
Committee. A member of the public can also submit proposals to the committee on the
constituency fund to be considered, and follow up and actively participate in its participation.

The legal framework discussed in this chapter is a roadmap to the critical analysis of the loopholes
and challenges of participation in Kenya, which is the subject of the next chapter.

committees be conducted impartially and without prejudice and untainted by personal self interest; enjoyment of
public facilities and access to services the area provides.
60
It respectively requires the cabinet secretary in change of finance and the county executive committee member
for finance to ensure citizenry involvement in the budgeting process.
CHAPTER 3

3.1 A CRITICAL ANALYSIS OF THE CHALLENGES AND LOOPHOLES OF PUBLIC

PARTICIPATION IN KENYA

Devolution in Kenya is a new concept that has been faced with several challenges, the major one
being its implementation. The challenges have not only been in terms of legislation but as well
politically. Kenya has been well known for its political struggle and the process of democracy has
not developed in the mind of Kenyans. If the devolution process is to be effectively implemented,
then it is imperative that effective participation and oversight role is practiced.

The new dispensation in Kenya has come with a lot of positive legislative changes. Devolution
provides a rigid legal foundation to the process of enhancing citizenry participation. However, the
process has been slowed due to the lack of coherent or coordinating framework. This in turn has
made the process of implementation harder than it is, to bring about changes that would improve
governance through participation.

The process of implementing these changes has been a big challenge at the local level. It is a well
known principle, that information is a vital instrument in any form of policy. More so, public
participation being a policy that involves the public from the very wording of it requires awareness
on it for it to be successful.

The lack of awareness has been a major challenge in the process of public participation in Kenya.
Most Kenyans do not understand this policy; let alone how to go about it and its benefits to them.
The success of devolution depends not only on the people’s awareness of their rights and
responsibilities, but also the channels through which they can exercise. These rights are well
recognized in the Constitution of Kenya.61

Several studies conducted have shown that citizen awareness is very low at the local level. Some
of these studies and their findings include; a study by the IEA on the constituency development
fund (CDF), showed that CDF is well known by 85% of the communities but the knowledge on
regulations and specifics of CDF was very low at 21%.

Another research carried out by Oxfam GB at Turkana, showed that people’s awareness of the
LASDAP process was very low at 18%. In an area like Turkana, which is a vast area with poor

61
Article 35(1) of the Constitution of Kenya gives the citizens the right to access information held by the state. It
further requires the state to publish and publicize any information affecting the nation, as provided in Article 35(3).
infrastructure, access to information was even harder due to the limited time period of one week
given by LASDAP for its meetings. This time period is not sufficient for a vast area like Turkana
and for most marginalized part of Kenya.

The other main challenge on the process of participation is on the issue of capacity building. In
addition to awareness of their rights and responsibilities, people need skills and knowledge to
execute their rights and responsibilities. Those who are aware that they have the right to participate
in governance do not have the knowledge the skills to do this. Kenyans are used to the strict and
unwelcoming era of the previous constitution. The Kenyan people fear to engage in what they
consider the high echelons of power. For instance, the judiciary is open to public participation as
provided by the Constitution in Article 159.62 However, most people do not understand how to
participate in the judiciary. Furthermore, the stereotype of fear and ‘no nonsense’ attitude
associated with the judicial process makes it harder for the people to approach the judiciary to
participate.

Furthermore, planning is also a challenge in the current devolved structure. However, the planning
structure provides better participation opportunities than the previous structure before the new
Constitution of Kenya 2010. At the local level the LATF and LASDAP have better planning
mechanisms. There are however, problems which include poor record keeping, poor resourcing
and enforcement mechanisms and poor prioritization.63

As much as public participation has been promoted through devolution and various legislations in
Kenya, the process of implementing it is a whole different story in this dawn of a new era in Kenya.
Community participation was quite high at the identification circle, but the implementation and
monitoring of it has been very low.64 In addition, there is the problem of the middle class and the
local elite not willing to participate in the implementation problem.65

A challenge of evaluation and monitoring is also a setback to enhancing effective public

participation in governance.66 Lack of proper methods of monitoring and evaluation has

62
The authority of the judiciary is derived from and vests in the people of Kenya, and exercised by the court and
tribunals (Article 159(1)) of the Constitution of Kenya. Article 159 (2e), further makes it mandatory that the
judiciary practices its judicial authority following the purpose and principles of the constitution. The principle,
amongst others includes devolution and participation by the people.(Article 10)
63
The development funds like Constituency Development Funds have been an avenue for the political leaders to
embezzle funds. Further poor priorities of projects have been common. Few elder from the community are
handpicked by the leaders and invited to small meetings and decisions made at a whim.
64
This is according to a social audit research carried out in four constituencies in Nairobi city in October 2010. The
research showed, particularly the process of participation remained low during the implementation and monitoring
process for both LASDAP and the Constituency Development Fund (CDF).
65
The middle class do not have the incentive to sit in the CDF committees and participate or be part of the elders
meetings. There is need to give them incentives and encourage to participate in the decisions that affect them.
66
The component of accountability in citizen participation has been noted as the weakest in the devolved structure
of Kenya. This is according to the KHRC and SPAN (2010). They further contend that it has been hard to hold
anyone accountable for misuse of funds, as it has proved impossible to acquire a legal backing.
contributed to corruption and political upheaval. In the past, the average Kenyan would not be able
to question the procedures at the local level.

The ministry of planning and National Development67in Kenya boasts of an elaborate monitoring
system housed under its monitoring directorate. However, this directorate lacks enough resources
and hence not effective in its task. The absence of proper monitoring mechanism has constantly
undermined accountability in Kenya’s governance.

Another critical area of challenge that undermines effective participation is the poor quality of
feedback mechanism.68 The citizens require information on a regular basis, and so the need for it
to be readily available. The major weakness in this area is the poor quality of the status reports in
the decentralized system. The reports on monitoring and evaluation are outwardly not based on
sound indicators. In addition, the personnel concerned with their drafting have no experience in
monitoring and evaluation.

Furthermore there is the challenge on finance mobilization strategies. The process of devolution is
a costly affair particularly in the enhancing of public participation. Therefore, there is need for the
collaboration amongst the stakeholders. The challenge, however, has been that there are no proper
check and balances on the county government as far as funding is concerned. This is due to the
multiplicity of funds at different areas of county government.

Last but not least is the challenge on the composition of citizen forums as far as the county
government is concerned. The Constitution of Kenya promotes the doctrine of the separation of
power both at the national and county level.69 The challenge has been that, more often than not,
the principle of separation of power has been abused through the political executive control of the
devolved funds. The members of parliament have autonomy in the constituency development
funds (CDF). In addition the members of parliament exploit these funds as they wish without the
engagement of the citizens in the process of utilization of the funds.70

Effective public participation is achievable once proper policies and framework are designed to
fill the gaps presented by these challenges. In addition, the Kenyans will and thirst for fulfilled
governance and democracy can only be achieved once they actively take part in decisions affecting
them.

67
The ministry has the function of monitoring and evaluation of economic trend and policy, amongst other
functions.
68
Feedback mechanism refers to the reports and dissemination of documentation that are prepared after monitoring
and evaluation.
69
The constitution on Article 175 (a) provides that the county government be mandatorily based on the principle of
democracy and the separation of powers.
70
The members involved in most of the CDF committees across Kenya, are handpicked by the Members of
Parliament without professional qualifications. Such members exhibit poor leadership skills in implementation of
developmental projects.
CHAPTER 4

4.1 PUBLIC PARTICIPATION: A COMPARISON OF KENYA AND LATIN AMERICA

The new concept of devolution in Kenya can borrow a lot from the system in Latin America to
achieve enhanced public participation. This thesis assesses the deepened democracy in general
Latin America and how developing countries in Latin America managed to achieve this
instrumental policy.

4.2 INNOVATIONS OF STREGHTENING GOVERNANCE IN LATIN AMERICA

The process of introducing public participation in Latin America started back in the 1980’s after
its dawn into democracy. The last three decades has improved the process of citizen engagement
in governance at accelerating levels. There are three major reasons behind this increase of citizen
engagement; one is the argument that participation in public policies and implementations reflects
the needs of the citizens in policies that govern them, making them legitimate and eventually
sustainable and effective. It is believed that engagement by citizens ensures good use of scarce
resources, since it renders the public informed and empowered, thus able to make reasonable
choices. Secondly, citizen participation has occasioned a shift from the typical politics.71 It has
welcomed the need to accommodate other actors such as the civil society and the private sector
into the relevance of governance and in public affairs. Lastly, involvement of citizens in
monitoring government activities bears more accountability in governance and creates more
control by the people. Latin America, has adopted both horizontal and vertical mechanisms of
accountability.72 The people of Latin America have institutionalized themselves in the formal
systems and as well vertically outside the checks and balances to achieve oversight role to ensure
accountability and enhance social justice.

4.3 The Goals of Latin America in Enhancing Participation

There are several goals that Latin America aimed to achieve in its quest to enhance citizenry
participation in governance. However, there are two major goals that the several initiatives taken

71
In the 1970’s in most parts of the world, the decision making function was solely and exclusive to the
governments.
72
The internal formal controls are the horizontal mechanism of accountability. They are established by the
representatives of the people and they include institutions such as oversight legislative committees, ombudsman
offices and others. Vertical mechanisms on the other hand involve independent citizens who establish oversight
mechanisms that hold authorities accountable.
by Latin America over the last three decades have focused on. They include; making the public
policies more responsive to the public needs and reduction of corruption and creation of
accountability in governance through the oversight role of public participation.73

The initiatives taken up in achieving the first goal includes; citizen consultation, participation in
budgeting process, the presence of local councils and multi-actor dialogues. The second goal
which aims to reduce corruption and increase accountability in governance, has been achieved
through initiatives such as, assessment of service delivery, social auditing, collaborations of
citizens with the auditors of public spending, citizen oversight of social programmes, citizen
engagement in the procurement process, citizen observatories, assessment of service delivery by
the citizens and use of public funds to promote the activities of civil societies.

4.4 Citizen Consultation

These are processes that collect the people’s opinion on policies of governance by the
government.74 This process is a way of ensuring that the governments respond to the vital needs
of the people. Citizen consultation is practiced both at the national and county level in Latin
America. The consultations may be conducted through referendums. 75 Apart from referendum
there are other avenues that the public are consulted. There is cabildo abierto, meaning “open
town hall meeting” is an avenue where the public meet in the town halls with the local
administrative unions, municipal or district councils to directly participate and discuss issues that
are important to the community.

Citizen consultations in Latin America are direct and do not require any intermediary
representative. Most of the Constitutions and legislations in Latin America have adopted citizen

73
These two goals have been achieved in Latin America through several citizen initiative methods that have been
worked on for the last three decades. The achievement of these goals has transformed the political and economical
landline of Latin America.
74
The government can ask the citizens on their opinions on a law, a constitutional reform, administrative decision,
or huge development processes.
75
The consultation processes in Latin America have several forms and different names such as, referenda, popular
consultations, plebiscites, cabildos and cabildo abiertos. The major ones are referendum and plebiscites.
Referendum seeks opinions of the public on legislative materials as to whether they should be implemented, for
example constitutional reference. A plebiscite on the hand is involved with the opinions on administrative issues and
decisions to render them more legitimate.
consultations in their policies, and have even gone further to provide secondary laws that enforce
this at the various local levels.76

Citizen consultation has been used to achieve several factors in Latin America, though not without
its test of challenges. These achievements include; gaining people’s approval to have
administrative and institutional reforms implemented in the constitution or the local government,
allowing people to participate directly in matters of interest to them, involvement of people’s
decision on environmental policies which may alter the citizens environment, traditions or
customs, in managing of conflicts between the indigenous communities and the extracting
industries.77 Despite this, there has been challenge in the implementation of the mechanism of
consultations in several countries in Latin America. In addition, the ideas gathered during the
consultation would not necessarily yield the expected results and have an impact on the society.
There are times when the decisions would bear no optimal result once used in policies.

4.5 Participation in the Budgeting Process

The idea of participatory budgeting was an innovation of the countries of Latin America. It was
designed to let the citizens to decide on what projects, priorities or services the government should
fund from a percentage of the local budget. The innovation was of the kind and first in Brazil in
1989.78

Participating in the budgeting process varies in different parts of Latin America. However, the
general formula they apply is as follows; yearly participation of individuals, civil or community
organizations in a series of workshops. These workshops are organized by the local or regional
government. Individuals or civil or community organizations give their opinion or decide on what
projects, services or priorities the government should fund with a certain percentage of the local
budget.

76
Bolivia has adopted this policy in its 2009 Constitution in the form of popular consultation. Brazil has adopted
referendum and plebiscite in its 1988 Constitution. Mexico on the other hand, has adopted in its Status’s Citizen
Participation Laws, referendum in 27 states and plebiscite in 26 states
77
In the last three decades, Latin America’s growth in large scale development projects has been achieved through
implementation into their communities. The right of indigenous communities and tribal society’s access to prior and
informed consultations is protected internationally by the International Labor Organization. Peru has gone further in
the protection of the indigenous people right to consultation, by implementing a law that defines mechanisms of
dialogue.
78
Currently, participatory budgeting is in over 2500 local governments in 15 countries within Latin America.
This process has already altered the situation in Latin America positively. In countries such as
Peru, Brazil and Uruguay, the poor people’s needs have been catered for at great levels. Most of
the budget allocation was shifted to assist the poor in these countries.79

4.6 The Use of Local Citizen Councils in Latin America

Participation at the local level improves the responsiveness of the people and the governance of
the area. It is thus important that the citizens have a say in decisions that affect their daily lives.
To create opportunities that allow the citizens engagement at the local level, Latin American
countries have created bodies they refer to as local citizen councils. These councils have enabled
regular citizenry participation in the policies at the municipal level.80

The countries that have successfully adopted these bodies include Bolivia, Peru, Brazil,
Guatemala, Mexico and Paraguay. Generally these countries involve various local political state
actors together with the private sector and the civil society81 into one single body. Policies are
formulated and designed amongst the various actors through consultative processes. These
processes have over the three decades strengthened democracy in Latin America. In addition, it
has created an all inclusive governance process that has accommodated the groups of people left
out due to historical injustices.82 These local citizen councils are formed under different institution
in different countries in Latin America. The council may have the backing of the constitution as is
the case in Peru,83 or by the initiative of local government and citizens. The vulnerable 84 in the
society have immensely benefited from this process.

79
There is a participatory culture developed in countries like Peru and Brazil and a large number of the population
take part in the budgeting process. ELLA BRIEF: Participatory Budgeting Citizen Participation for Better Public
Policies.
80
Local citizen councils took root in the 1980’s after the democratization of Latin American countries.
81
The actors from the civil society are gathered from different fields of the economy; academia, civil and
community based organizations.
82
The local citizen councils are still evolving in some countries in Latin America, but major achievements have
been experienced. In Brazil and Peru, local citizen councils have included the marginalized and the minorities in
participatory processes. These countries are also proof that they lead to improved service delivery and development
outcome at the local level.
83
In Title IV, Chapter of the Peru’s Constitution on Decentralization it recognizes citizen participation and
mandates local councils at the regional level referred to as the Regional Coordination Councils whose composition
are and civil society representatives and regional public officials.
84
The vulnerable society in Latin America is the youth, women, persons with disability and the marginalized
society. They have been able to be part of decision making through the local citizen councils.
4.7 Multi-stake Holders Dialogue

Latin America has applied this process to enhance citizen participation over the last twenty years.
The dialogue has assisted to bring relevant policies into discussion and the implementation of such
relevant policies.85The process has shifted Latin America from an authoritarian rule to more
democratic processes. Multi stake dialogue is an open and unlike local citizen councils, are not
permanent or mandated by law. In contrast, they are flexible and sustainable and adapt to
contextual changes. Furthermore they are used to complement the legislative processes in countries
in Latin America. Multi-stake holders dialogue generally aim to achieve several factors which
include; creation of legislative mechanisms for citizen oversight; expansion of policies debated in
the public sphere by incorporating new aspects into the agenda, application of unbiased expert
design and implementation of public policies; create viable institutions which are transparent and
accountable.

4.8 Public Participation in the Procurement Process

Much of the gross domestic product in the in Latin America (15-30%) goes into the purchase of
good and services by the government. The public procurement in Latin America is prone to
corruption. There is need to ensure that citizens are involved in the procurement process to take
oversight functions and curb corruption.

Several approaches are used in Latin America to enhance oversight in procurement process and
fight the vice of corruption. First, the governments of countries such as Chile, Guatemala, Mexico,
Panama and Paraguay have created e-procurement platforms that have increased transparency in
the procurement process. The people can follow up on government purchases and expenditure.
The availability of such information creates an oversight role of the citizens on government
spending and thus ensuring transparency.86

Secondly, the civil societies in Latin America have undertaken assessment of the transparency of
the procurement process. The civil societies organize themselves into independent group of

85
The multi-stake holder dialogue has been a forum for implementing relevant policies. It enhances the formulation
and implementation of public policies.
86
Other governments such as that of Argentina and Mexico have created avenues where the public can take part in
the monitoring of the procurement process. The citizens, referred to as the social witnesses (Testigos Sociales) are
invited to ensure that the process is transparent and fair. The citizens then right a report which is published on the
government’s procurement platform.
citizens and monitor the procurement process. For example, Argentina has organized itself into a
group referred to as poder ciudadano which has developed tools for monitoring procurement.87
Guatemala on the other hand has accion ciudadana, the transparency international chapter which
also monitors procurement and trains other civil society organizations to do so.

4.9 Citizen Collaboration with Supreme Audit Institutions in Latin America

Supreme audit institutions are the government bodies that monitor other government bodies. They
are usually independent from the other government bodies and have autonomy over them. 88 The
supreme auditing institutions have involved citizens in three major ways, which include; direct
involvement of citizens in the auditing process, creation of reporting centers in form of offices,
phone lines, email accounts, mail box amongst others, where the citizens can raise complaints,
some of the auditing institutions consult with the civil society on which audits they should
undertake.

It has been evidenced in Chile, Paraguay, Costa Rica, Ecuador and Chile that the supreme auditing
process has enhanced proper oversight by citizens in procurement. New input channels are being
used by these countries, providing the auditing institution with improved audit related information.

4.9.1 Lessons Kenya can learn from Latin America

The practice of accountability both horizontally and vertically needs to be practiced in Kenya if
efficient participation is to be enhanced. Kenya needs not only develop on the current formal
institutions of accountability but as well engage the independent institutions.89 The collaboration
of different actors is necessary for effective participation. The people’s degree of response would
be heightened when all sectors of the society converge at a central point towards one goal. The
local government in Kenya should include citizen participation within the context of non-state
actors in their legislations. A well established legislative framework would go a long way to
enhance participation as can be seen in the case of Latin America.

87
Argentina has achieved proper citizen oversight due the existence of transparent public procurement programme.
Poder ciudadano is the Argentinean chapter of transparency international.
88
The auditing institutions carry out yearly audit of some spending of the
89
There is need for collaboration of the different actors just like in Latin America. The actors should include, the
civil society, the private sector, the local governments and the non-governmental organizations
In addition, the process of citizen consultation applied in Latin America would be useful in Kenya
if streamlined appropriately. Forums for citizen consultation should be established. These
processes such as open hall meeting as in the case of Latin America need be encouraged in Kenya.
It would be of great impact if such mechanisms are given backing in the county legislations. There
should also be established a systematic way of recording the needs of the citizens from the
consultations carried out. The county governments can create a calendar date where the public, the
local leaders and all the stakeholders hold a consultative meeting on policy implementations.

Furthermore, local council’s creation would as well go a long way in enhancing participation by
the people. Kenya can borrow the Latin American model and create a local council that is
composed of both the private sector and the civil sector.90 In addition Kenya can adopt participation
in procurement as well. Kenya has been infiltrated with the vice of corruption which has been
occasioned by the lack of proper oversight of government spending. The government should
establish an e-procurement platform where the public can oversee the government’s spending.
They citizens should also be given the opportunity to directly participate in the monitoring of
procurement.91

The process of democracy in Kenya is still mild and as such there is need to complement it with
policies that enhance the process of democracy. The multi-stake holders dialogue used in Latin
America would be nothing but suitable to achieve enhanced participation. These can be in the form
of dialogues which are made necessary with trending factors. Kenya, being a politically
unpredictable country where controversies are the order of the day, would benefit from this
mechanism. The dialogue can be used whenever relevant policies come up, or where there are
controversies over policies, the public can be involved to make the final decisions on the policies.92

Last but not least, Kenya should adopt the participatory budgeting mechanism applied in latin
America. The government should expand participation in the budgeting process through meetings

90
There is need for legislative framework to guide local councils. This would make it more responsive to the needs
of the people and as well accommodated by the people as it will have a legal basis.
91
This can be achieved by forming specific groups of public from different walks of life to do a monitoring of
procurement like in Latin American countries. A report should be written by the groups in procurement platforms
that need be fully established in Kenya.
92
This process can help limit the time wasted in political gimmicks and irrelevant policies. Through the citizens
voice, it would promote the implementation of relevant policies that resonate with the public and improve
governance.
with the stakeholders. Stakeholder’s workshop should be organized annually to discuss policies
on budgeting and have direct involvement of the citizens in the process. The reports from these
mechanisms should be made available to the public and time for feedback given before
implementing them. There should be proper feedback mechanism such as social websites and
offices for reporting.

The process of enhanced participation evidenced by the situation in Latin America has improved
accountability and social justice. It is clear that citizen participation has increased the
responsiveness of public policies. It has as well accommodated the needs of the vulnerable people
in the society. The experiences in Latin America show the importance of public participation to
the process of true democracy. It further shows the need for political space to be opened up to
allow for public participation if sustainable governance is to be achieved.

Kenya, which is at the first steps of true democracy, needs to embrace and work towards constant
implementation to enhance citizenry participation. Furthermore, participation is a national value
in the constitution of Kenya.93 The process of public participation is a process that should involve
all state actors and non state actors to achieve its full potential in achieving true democracy.

CHAPTER 5

POLICY RECOMMENDATIONS ON PUBLIC PARTICIPATION AND CONCLUSION

93
Article 10 of the Constitution of Kenya recognizes participation as the national values and principles.
5.1 Policy Recommendations

This thesis is focused on policy recommendations on eight areas of policy. This thesis aims to fill
the gaps in these policies that have been discussed in chapter three. The recommendations focus
on how the gaps in the policies can be filled and participation in governance enhanced. These
policies include; awareness creation, capacity building, planning, reporting mechanism,
implementation, monitoring and evaluation of development outcomes, financial mobilization
strategies, composition of forums and committees.

5.2 Awareness Creation on Public Participation

An enlightened society who can engage in the policies of the county and are empowered to
effectively participate in policies is a major step in effective participation. Awareness creation can
be created through use of channels of communications such as local newsletters, local radio
stations, county websites, television and any other accessible media. Further, there is need to
provide notice of not more than a month on forthcoming plans. In addition, the persons with
disabilities should be communicated to in modes that they can understand. There should also be a
fine imposed on failure of disclosure within stipulated time. Awareness can also be enhanced by
having a free media time on all television channels to support participation.

5.3 Capacity Building

As has been discussed in this thesis, most of the local people of Kenya lack the skills and
knowledge to carry out their rights and responsibilities. Therefore, capacity building is necessary
for enhanced participation in governance. There should be an ongoing process of capacity building
on the communities’ participatory activities and in the county institutions. In addition, capacity
building should be based on training to target the different concerns of the community. 94 Seminars
on leadership dynamics and resource mobilization and utilization would assist in capacity
building.95 Furthermore, the process can be achieved at the ward level through involvement of key
persons in Ward Citizen Forums in the capacity buildings programmes. Capacity building should
accommodate training and documentation in local language and creative methods such as art and
drama should be used. In addition training should target students at the tertiary level to create a
spirit of volunteerism. Further, the participants in the training programmes should be awarded as
an incentive to encourage the process of participation. The gifts can be in form of scholarships or
ceremonial role in the county level.

5.4 Public Participation in Planning

94
There should be established a national steering community focused on capacity building effort. A comprehensive
community profiling should as well be done and resource persons enlisted.
95
Skills related to service delivery such as basic bookkeeping accounts and budgeting and conflict resolution should
be applied in capacity building.
The participation of citizens in planning is crucial so that the people can determine development
outcomes at the various stages of development.96 The planning should be founded on social justice,
accountability and equity. Further, the prioritization of community needs identification needs to
be given enough time, possibly three days.

Planning should be devolved down to the ward citizen forums. In addition, there should be
guidelines to steer the process of planning process. Projects that are of priority need to be from the
ward citizen forums to the sub-county citizen forum for consensus. Furthermore, calendar for all
planning meetings should be disseminated to ensure all citizens participate in the planning
process.97

5.5 Public Participation in Implementation

A participatory mechanism that enables the citizens to influence development programmes at

every level should be established. To achieve this, first the county should delegate its
implementations powers to the sub-county and ward level. An office dealing with implementation
should be established at the county level. A citizen forum committee should be established at the
sub-county level to oversee the implementation process at that level. Further, the citizen forums
should form committees that oversee the implementation process both at the county and sub county
level. The committees at the county and ward level have to be formulated in an agreeable policy
to ensure effectiveness.98

5.6 Public Participation in Monitoring and Evaluation in Development Outcomes

The public need to have explanation on how their tax is spent and as well the public resources that
they trust with the authority. The citizen should be able to get justification on how the public
resources are managed. In addition, in the circumstance where public resources have not been used
effectively, the holders of public offices need to give justification of their performance and take
corrective measures.99

There also should be a reward mechanism as to accountability. The reward can be in form of a
quality mark for the county, which can earn something like a bonus project or fund for the county.
Further, the citizens have the right to know the expenditure of the county. There should be a status
report capturing the expenditure from county, sub-county and ward level.100

96
Planning should be informed by statistical data from the county and the national development goals
97
Financial data and county planning data should be shared out to the public through the citizen forums. The data
should be availed in god time before the budgeting day
98
The roles of the committees should be delegated and clear to ensure their effective performance and delivery.
99
The citizens should take part in the assessment of the reflection of the county strategic plan which should be
coordinated through the sub-county and ward citizen forums.
100
The information on the basis of county, sub county and ward level should be readily available at the offices
concerned and as well online.
5.7 The Policy of Reporting

Reporting creates a culture of accountability both amongst the duty bearers and those demanding
accountability. The county governments should submit periodic reports to the citizens through the
citizen forum committees.101 The status reports have to be comprehensive and any failure to do
this, should accord the citizens the right to demand new reports that are comprehensive. The reports
have to be based n strategic action plans.

The county reports have to capture the expenditure reports made available online, and at all the
desks of the local government. Further, the reports need to be simplified and in the local language
if need be. The technical committees of the Government should be readily available to answer
questions regarding the reports. The technical committees should remain responsive to the citizen
questions.

5.8 Mobilization Strategies Pertaining Finance

Mobilization of finance should be carried out to ensure sustainability of citizen participation. The
devolved funds at the county level should be harmonized into a single channel. In addition constant
check and balances should be administered. Further, there is need to channel the 15% allocated to
county governments to public participation, capacity building and civil education to create
awareness. There also should be annual money set aside for giving incentive to those who do well
in national service, this would encourage volunteerism.102

The corporate sector should be given incentive to get involved in the participation process. The
corporate sector can be given incentive in terms of tax reduction, prestige or recognition.

5.9 The Composition of Citizen Forums and Committees

The composition of committees in the citizen forums should have integrity and carry out their
functions effectively. The citizens should participate in the forums on a volunteer basis. Further,
the committees should be impartial and selected through suitable voting mechanisms. There is
need for establishment of a sub county citizen forum at the sub-county level.103

The sub county citizen forum should appoint a civilian head who must be a person competent in
development matters. The person should be non-partisan and have an experience in developmental
matters. Finally the committees should be selected based on the national values and principles of
Article 10 of the constitution.

101
The reports to the citizens from the county format should be accessible and in a simple and understandable
language by the local communities.
102
A joint funding mechanism should be established between the government, private sector and the development
partners. The joint funding would ensure continuity of citizen participation at the count level.
103
The sub county citizen forum should be composed of the citizen ward representatives and religious leaders.
Technical county officers and development partners may be included as ex-official members.
5.9.1 Conclusion

The institutionalization of public participation in governance is still problematic. The major

problem of public participation is its implementation. Public participation is a major requisite in
the process of gaining democracy. The process of democracy in Kenya is still evolving. Public
participation is a major tool towards a new dawn of democracy in Kenya. There’s need for the
politics and the real issues of this nation to find a middle ground and focus towards attaining good
governance. Adopting the new constitution alone has not been enough, constant implementation
processes and public involvement are necessary for improved governance. Devolution has been
put at risk by poor plans and policies. All the actors need to be involved in enhancing public
participation. Enhanced citizen participation will reduce the gap between the rich and the poor.
The needs the vulnerable need to be heard and met.

Enhancing participation is a roadmap towards good governance, responsive policies and uplift of
social standards.

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