The Public Participation Bill, 2023 (National Assembly Bills No 52) Of 2023

SPECIALISSUE

Kenya Gazette Supplement No.I50(National Assembly Bills No.52)

REPUBLICOFKENYA

KENYA GAZETTE SUPPLEMENT

NATIONALASSEMBLYBILLS,2023

NAIROBL,1stSeptember,2023

CONTENT

Bill for Introduction into the National Assembly-

ThePublicParticipationBill,2023

PAGE

1563

THEPUBLICPARTICIPATIONBILL,2023 ARRANGEMENTOFCLAUSES

Clause

PARTI-PRELIMINARY

• 1-Short title
• 2-Interpretation.
• 3-Application.
• 4-Object of theAct.

PARTI-PUBLICPARTICIPATION

• 5-Scope ofpublicparticipation.
• 6-Conduct ofpublic participation.
• 7-Rights of a member of the public in public participation.
• 8-Determination of responsible authority
• 9-Development ofspecificpublicparticipation guidelines.
• 10-Publication of specificpublic participation guidelines.

PARTIII-MISCELLANEOUSPROVISIONS

• 11-Provision forresources forpublicparticipation
• 12-Reports.
• 13-General penalty.

PARTIV-PROVISIONS ONDELEGATED

POWERS

14-Regulations

SCHEDULE—GENERALPUBLIC PARTICIPATION GUIDELINES

THEPUBLICPARTICIPATIONBILL,2023

A Bill for

AN ACT of Parliament to provide for a general framework for effective public participation; to give effect to the constitutional principles of democracy and participation of the people under Articles 10(2),118,196,201(a)and 232(1)(d)ofthe Constitution;and for connected purposes

ENACTED by Parliament of the Republic of Kenya

as follows-

PARTI-PRELIMINARY

• 1.This Act may be cited as Public Participation Act,Shortile.
• 2023.
• 2.In this Act,unless the context unless the context Iterpretation
• otherwise requires-

"Cabinet Secretary"means the Cabinet Secretary for the time being responsible for justice and includes the Attorney General;

"general guidelines"means the general public participation guidelinesprovided forin the Schedule:

"public officehas the meaning assigned to it under

Article 260 of the Constitution;

"public participationmeans the process through which the public are engaged in understanding and contributing to decision-making processes by state organs and public offices at the policy making.law making and implementation level;

"responsible authority" means theauthority responsible for public participation in the institutions set

out under section 8:

"state organ"has the meaning assigned to it under Article260 of the Constitution:

"specificguidelines" means the specificpublic participation guidelinesdeveloped by aresponsible authority under section 8.

• 3.This Act shall apply to all public offices, state
• organs and allpersons inKenyawheneveranyof them-

Applhication

• (a)applies or interprets the Constitution or any written law;or
• (b)makes or implements anypublicpolicy decisions.
• 4.The object of this Act is to enhance,promote and facilitate public participation in governance processes and in particular to-
• (a)give effect to theprinciples ofpublicparticipation as provided for in Articles 10(2),118,196,201(a) and 232(1)(d)of the Constitution;
• (b)promote democracy andparticipation of thepeople in accordancewithArticle10 of the Constitution;
• (c)promotetransparency andaccountabilityin decision making;and
• (d)enhance public awareness and promote public participation in governance processes.

PARTI-PUBLICPARTICIPATION

• 5.Without prejudice to the generality of section 3, each state organ or public office shall facilitate public participation on matters relating to-
• (a)formulation ofpolicies;
• (b) budgeting and financial management;
• (c)law making processes;or
• (d) any other matter as may be prescribed in the regulations.
• 6.(l) A state organ or public office shall provide
• reasonable and meaningful opportunities for public participation.
• (2)In determining what is reasonable,the state organ orpublic shall take into consideration the-
• (a)nature of legislation or decision to be made;
• (b) importance of the legislation or decision on the public;
• (c)impact of the legislation or decision on the public;
• (d)need for inclusive and effective representation;
• and

Object of the Act

Scope of public

participation.

Conduct of public

participation.

• (e)integrity and transparency of the process.
• 7.(1) A member of the publicor an entity likely to be
• affected by a decision shall have theright toparticipate in the decision-making processes.
• (2)Amemberof thepublic oran entity may-
• (a)attend a publicparticipation forum;
• (b) attend a public participation forum and make presentations either orally or by way of written submission to a state organ or public office on the subject matter asmaybedetermined:or
• (c)submit a written submission to the state organ or public office conductingpublicparticipation.
• (3) If in any publicparticipation forum,it becomes necessary tokeepthe identity ofa participant confidential, the state organ or public office shall,hold part of the proceedings in private and shall ensure that the identity of the participant is not disclosed.
• 8.(l) This section determines what body is the responsibleauthority for thepurposes of this Act.
• (2)The relevantcommittee,ineachHouse,
• responsible forrules andprocedure shall be the responsible authority forParliament.
• (3)The Chief Justice shall be the responsible authority
• for theJudiciary
• (4) The secretary or chief executive officer shall be the
• responsible authority for an independent commission or office.
• (5) Cabinet Secretaries shall be the responsible authorities for Government tministriesand state corporationsor any otherpublicbody under theirrespective ministries.
• (6)The county assembly committee responsible for
• rules andprocedure shall be theresponsible authority for a county assembly.
• (7) The County Secretary shall be the responsible authority for a county executive.
• 9.(1) Each responsible authority shall develop guidelines for undertaking public participation in the respective institution.

Rights ofa member of the public in public participation.

Determination of

responsible authority

Development of

specific public participation guidelines.

• authorityundersubsection (l)shall include the requirements set out in the general guidelines for public participation in the Schedule and may-
• (a) include specific requirements beyond what is required under the general guidelines for public participation under the Schedule;and
• (b) provide for the manner in which any requirements of the specific or general guidelines may be
• satisfied.
• (3) Until a responsible authority has developed specific guidelines relevant to the respective public body under this section, the general guidelines on public participation under thisActshall apply as though they were the specific guidelines developed by the responsible authority.
• (4)The specific guidelines on public participation developed by a responsible authority shall not derogate from the general guidelines for publicparticipation set out in thisActand theSchedule.
• (5)The Statutory Instruments Act shall apply to the guidelines developed by a responsible authority under subsection (2).
• (6) Parliament and each county assembly shall incorporate guidelines for undertaking public participation in their Standing Orders and ensure they are accessible to the public.
• (7)The provisions of subsection (5) shall not apply to Parliament and the county assemblies.
• 10.1) Each responsible authority shall publish the specific guidelines on public participation developed pursuant to section 9(1) in the Gazette within six months of
• the commencement of this Act.
• (2)The provisions of subsection (1) shall not apply to Parliament and the county assemblies.

PARTIII-MISCELLANEOUSPROVISIONS

• 11.A state organ or public office shall provide the necessary resources under this Act and shall include in its

No.23of2013.

Publication of specific public participation guidelines.

Financial provisions.

annual estimates provisions for expenses for purposes of undertaking publicparticipation.

• 12.(1) Each state organ or public office shall prepare
• an annual report on public participation at the end of each financialyear.
• (2)Where the state organ or public office relates to an institution that is required by any written law to submit an
• annual report,the report referred to under subsection (1) shall form part of its annual report.
• (3) The annual report prepared under subsection (1)
• shall be tabled,in the case of a national government institution,in the National Assembly and the Senate,or,in the case of a county government institution,the respective County Assembly not later than three months after the end of thefinancial year to which thereport relates.
• (4) The annual report shall contain-
• (a)a description of any complaints made against the institution in respect of public participation,the action taken and the period within which the complaint was addressed:and
• (b)any other information that the responsible
• authority may consider relevant.
• 13.A person who contravenes a provision of this Act commits an offence and shall upon conviction,be liable to a fine no fine not exceeding three hundred thousand shillings or imprisonment for a term not exceeding six months,or to both

PARTIV-PROVISIONS ONDELEGATED POWERS

• 14.(1) The Cabinet Secretary may make regulations for the better carrying into effect of the provisions of this Act.
• (2)Without prejudice to the generality of the foregoing,the Cabinet Secretary may make regulations for-
• (a) specifying additional institutions not specified under section 8;and
• (b) any other matter required to be prescribed under this Act.

Reports,

General penalty

Regulations.

• (3)For the purposesofArticle 94(6)ofthe
• Constitution-
• (a) the purpose and objective of the delegation under this section is to enable the Cabinet Secretary to make regulations for better carrying into effect the provisions of this Act;
• (b) the authority of the Cabinet Secretary to make regulations under this Act will be limited to bringing into effect the provisions of this Act and fulfilment of the objectives specified under this section;and
• (c)the principles and standards applicable to the delegated power referred to under this Act are those found in-
• (i)the Statutory Instruments Act,2013;and
• (ii)the Interpretation and General Provisions Act.

SCHEDULE

GENERALPUBLICPARTICIPATIONGUIDELINES s.9(2)

• 1.A state organ or public office shall,before conducting public participation on a particular matter, identify the
• (a)purpose of the public participation;
• (b)urgency of thematter;
• (c)nature of legislation or decision to bemade;
• (d) importance of the legislation or decision;
• (e)the impact of the legislation or decision on the
• public;
• (f)need for inclusive and effective representation;
• (g)integrity and transparency of the process;
• (h) the number and circumstances of interested parties
• and affected parties;and
• (i)the ability of the targeted participants to accessthe
• necessary information and the venue.
• 2.(1) A state organ or public office shall give the public adequate notice to make their input on the issue.

Factors to be

considered.

• Notice

• (2)For purposes of sub-paragraph (1),a state organ or
• public office shall establish mechanisms to enable the widestreachwhich mayincludepublication ofnoticesin
• (a) television stations;
• (b)information communication technology centres;
• (c)websites;
• (d) communityradio stations;
• (e)public meetings;
• (f)newspapers;or
• (g)any other media that may be prescribed.
• (3)A public participation programme under sub-
• paragraph (1) shall clearly identify-
• (a)specific purposes for consultation;
• (b) the community,profession or groups to be
• consulted;
• (c)the length of the consultations;
• (d) whether submissions should be made orally,in writing orboth:and
• (e) the issues ormatter for consultation.
• 3.(1) A state organ or public office shall ensure that the public and entities have fair and equal access to the public participation process and the opportunity to give views on the intended decision.
• (2) A state organ or public office shall take all s with disabilities in the publicparticipation processes.
• (3)Where the targeted participants are not conversant in the national languages,the state organ or public office shall provide an interpreter for those participants who wish
• tomake their remarks in their local language.

Adequate time.

• 4.A state organ or public office shall give the public
• adequatenotice tomake their input on the issue.
• 5.(1) A state organ or public office shall-

Accessto information for

• (a)publish and distributethe documents for consideration as widely as possible using the
• available means,including providing hard copies,

public participation.

Access to public participation processes.

• radio and television advertisements,websites or
• community radio announcements:and
• (b)ensure that the documents are published and distributed in a languageand form thatcan beused by the public.
• (2)A person may request for information relating to
• an issue under consideration.
• (3)Arequest for information under sub-paragraph (2)-
• (a)shall be addressed to the head of the state organ or
• public office or such other person as the state organ or public office may designate for that purpose;
• (b)may,where the authority incurs expense in providing the information,be subject to payment of a reasonablefee;and
• ()may be subject to confidentiality requirements of the state organ or public office.
• (4)Subject to the provisions of Article 35of the Constitution and the Access to Information Act and the Data Protection Act,a state organ or public office may decline to give information to an applicantwhere
• (a) the request is unreasonable in the circumstances;
• or
• (b) the applicant fails to satisfy any confidentiality requirements imposed by the state organ or public
• office.
• (5)The right of access to information under Article35 of the Constitutionshall belimited to thenature and extent specified under this section.
• 6.A state organ orpublicbody shall ensure
• (a) that all responses are considered and analysed;
• (b) the final decision is made available to the public including the reasons for the decisions taken;and
• (c)the disclosure of all relevant information for the public to understand and evaluate the decision
• made.

No.31of2016

No.240f2019.

Processingof responses.

• 7.A state organ or public body shall
• (a)undertake and encourage actions that build trust
• and credibility in the public participation process among all the participants;
• (b)beresponsible for thevalidity of all data collected analyses performed,or plans developed by it or
• under its direction;and
• (c)not engage in conduct involving dishonesty,fraud
• deceit,misrepresentation or discrimination,
• (d)not accept any payments or gifts given contingent
• on an interested party's desired result where that desired result conflicts withits professional judgment;
• (e) inundertaking
• public participation,avoid relationships actions,whichcouldbe legitimately interpreted as a conflict ofinterest by clients,officials or the public;and
• (f) ensure there isno misrepresentation of facts relating to the relevant body.
• 8.(1) All participants,including the representatives of
• the responsible authority and all respondents,shall be courteous,respectful and civil in the public participation processes.
• (2)Individuals who are disruptive shall be given a warning and,may,if necessary,be removed from a meeting.
• (3)A person's freedom ofexpression under Article33 of the Constitutionshall belimited to thenature and extent specified under this section.

Credibility and integrity of the Process.

Conduct in publie participation

processes

MEMORANDUMOFOBJECTSANDREASONS

Statement ofobjectsand reasons

The principal object of the Bill is to provide a framework for effectivepublicparticipation.TheConstitution ofKenya 20iO,ushered in a new system of governance that places the people at the centre of governance.Accordingly,all public processes ranging from policy making.legislative process and ultimate decision making,require the participation of the people of Kenya.

This Bill therefore proposes to provide a mechanism to facilitate effective and coordinated public participation.The Bill accordingly gives effcct to the Constitutional principles of public participation and participatory democracy enunciated in Articles 1,10,35,69,118,174, 184,196,201,and232of theConstitution.

The Bill designates the responsible authorities for purposes of developing institution specific guidelines for public participation.Public participation processes are different in all institutions and therefore,the Bill recognizes these differences and designates responsible authorities for purposes of developing the specific guidelines and offering oversight for public participation.

The Bill also requires the responsible authorities to develop the specific guidelines within a stipulated timeline.It provides for the development of the guidelines which must be in line with the general guidelinesprovided in the schedule to theBill.TheBill also proposes that each responsible authority must provide for resources and budget for expenditure pertaining public participation in the annual estimates. Further,for accountability,every responsible authority is required to include in its annual report an outline of activities and outcomes ofpublic participation.

Statement on the delegation of legislative powers and limitation of

fundamental rights and freedoms

The Bill delegates legislative powers to the Cabinet Secretary to makeregulationsfor the better carrying into effectof theprovisionsof the Bill. The Bill does not limit any of the rights and fundamental freedoms contained in theBill of Rights in the Constitution.

Statement on how the Bill concerns county governments

The Bill seeks to provide a national framework for public participation.Public participation is a Constitutional requirement at all levels of government. The Bill therefore concerns county governments in terms of ArticlesliO(l) (a) of the Constitution in that it contains provisions that affect the functions and powers of the county governments as set out in the Fourth Schedule to the Constitution.

Statement as to whether the Bill is a money Bill within the meaning of

Article 114 of the Constitution

The enactment of this Bill shall occasion additional expenditure of public funds.

Dated the 15th August,2023.

DANIELEPUYONANOK

Chair,Committee on

ParliamentaryBroadcasting andLibrary.