The year that Kenyans witnessed many cases over public participation

The controversial Finance Act 2023, for instance, was one that was nullified by the Court of Appeal for failing to adhere to the principle of Public Participation.

Court of Appeal Judges Kathurima M'inoti, Agnes Murgor and John Mativo said the various sections introduced post-public participation to amend the Income Tax Act, Value Added Tax Act, Excise Duty Act, Retirement Benefits Act and Export Processing Zones Act were unconstitutional as they were not subjected to fresh public participation.

 It was their view that parliament was obligated to provide reasons for adopting or rejecting any proposals received from members of the public during the public participation process.

 "Failure to comply with this constitutional requirement renders the entire Finance Act 2023 unconstitutional," they said.

 But the State being dissatisfied with that decision, appealed to the Supreme Court where the judgement was overturned.

The issue of what should be considered sufficient and satisfactory public participation took centre stage as the government and the petitioners here being Busia Senator Okiya Omtatah and others, belaboured on the point during hearing sessions.

 Omtatah, Advocate Ochiel, and Evans Ogada representing Siasa Place and Tribeless Youth, urged the court to find that Parliament was obligated to give reasons for adopting or rejecting proposals received by members during the public participation process.

He said the clients they represent made 58 submissions, and only four were considered. Two were marked as rejected, and no reasons were given.

 "When there are competing views, you need to give reasons so that the public may know why it has been rejected or adopted," Dudley said. 

 They asked the Apex Judges to uphold the decision of the Court of Appeal delivered on July 31, which imposed a wide scope of public participation when it nullified the 2023 Finance Act. 

The Attorney General and CS Treasury, as represented by Senior Counsel Kiragu Kimani and Prof Githu Muigai said there is no requirement to give reasons for adoption or rejection. 

At this point, even Chief Justice Martha Koome sought to find out from parties their views on the Court of Appeal's decision that appeared to have introduced new parameters on matters of public participation. 

"It appears CoA raised the standard or changed the yardstick and introduced new parameters. Is that a breach of the requirements of public participation when it was not known, or was it a new framework introduced to raise the bar?" he CJ posed. 

 For a long time, the principles set in the British American Tobacco case (BAT) have served as a guiding standard for public participation.

In that case, BAT had challenged the manner in which the Tobacco control regulations came into place citing a lack of sufficient public participation.

But the Supreme Court found there was no unconstitutionality when the regulations came into force.

The court ruled that while public participation must be genuine, it did not mean that all proposals and views presented during public participation must be accepted. 

Advocate Issa Mansour, who was representing the National Assembly and its speaker in the Finance Act case, told the court that the Court of Appeal made a mistake when it deviated from the principle set in the BAT case.

He said the CoA made a mistake in finding that amending the Finance Bill, 2023 post public participation to include 18 new provisions from the public participation process was unconstitutional.

 Mansour further stated that each amendment in the challenged Finance Act stemmed from the input received during public participation, reflecting a transparent and inclusive legislative process.

 The Supreme Court, in its final determination reinstated the Finance Act 2023 while at the same time clarifying the framework for public participation.

 Even though the Law Society of Kenya and other justice actor players did not welcome the ruling, the Apex Court said Parliament ought to put in place a legislative framework to regulate the process of public participation as envisaged under the Constitution

 It was their view that further public participation is not required for amendments introduced following initial consultations, as long as those amendments reflect input already gathered.

 Other Acts that were challenged in court due to lack of adequate public participation was the SHIF rollout and Privatisation Act. 

The cases garnered significant attention as they highlighted the procedural flaws in the way laws were enacted.

 Justice Chacha Mwita, for instance, declared as unconstitutional the Privatisation Act saying there was no meaningful public participation that took place prior to its enactment.

This meant that the Kenya International Convention Center and other assets would not be sold to private investors.

The court was in agreement with ODM—the petitioner—in the case, which had argued that the assets can only be privatised with the consent of the people at a referendum.

This is so because they form part of the sovereign wealth of Kenya with significant cultural and strategic importance to the public.

 The Social Health Insurance Fund was another Act that faced the same fate as the Privatisation Act.

Although it was initially declared unconstitutional by the High Court for lack of adequate public participation, the same decision was subsequently set aside by the Court of Appeal setting the stage for the fund rollout. The case, however, pends determination in court.

While some of these cases were a setback for the government, it led to a renewed commitment to ensuring that future legislation would undergo thorough public participation.