Public Participation, What Is Sufficient?

By: Joseph Mutua Ndonga

Worth Noting:

• Gachagua’s lawyers aver that the exercise of public participation did not meet the requisite threshold.
• Reports indicated almost 200,000 Kenyans participated in this exercise and majority supported the impeachment of DP. The widely held view is that the turnout was the highest ever compared to other matters that had previously been subjected to public participation.
• Back to the Supreme Court decision on Finance Act 2023, the judges overturned the decision of the Court of Appeal ordering the Government to revert to 2022 Finance Act.
• The court allowed state to continue collecting taxes as prescribed by Finance Act of 2023 until the case it had filed is heard and determined.

When the Court of Appeal reaffirmed the decision of the High Court that had invalidated Finance Act, 2023, the ruling Kenya Kwanza Government immediately filed a petition at the Supreme Court (SC) seeking to overturn that verdict.

Drama ensued during proceedings as the lawyers for the two parties worked hard to outdo each other.

The issue of public participation formed the basis of the arguments by those representing the parties opposed to the Act.

They argued the public participation conducted did not meet the requisite threshold.

But the lawyers for the government reasoned that the argument did not hold any water as it is not informed by the law

The framers of the constitution 2010 failed to enact provisions outlining the creteria. This left a lacuna in law as the law is silent on what passes as a well conducted and satisfying public participation.

When the parties were making their final submissions, one of the judge of the apex court asked. Can those opposing the 2023 Act help us to understand what is sufficient when it comes to matter of public participation?

Despite struggling to respond, the lawyers finally failed to give a convincing and satisfactory answer.

I have revisited this matter because the issue of public participation is one of the key highlights in the petitions filed by the lawyers representing Deputy President Rigathi Gachagua.

These efforts took a new turn after members of parliament voted to impeach Gachagua.

While noting that none of these petitions have been considered in his favor, Gachagua fate now lies with the Senate.

Gachagua’s lawyers aver that the exercise of public participation did not meet the requisite threshold.

Reports indicated almost 200,000 Kenyans participated in this exercise and majority supported the impeachment of DP. The widely held view is that the turnout was the highest ever compared to other matters that had previously been subjected to public participation.

Back to the Supreme Court decision on Finance Act 2023, the judges overturned the decision of the Court of Appeal ordering the Government to revert to 2022 Finance Act.

The court allowed state to continue collecting taxes as prescribed by Finance Act of 2023 until the case it had filed is heard and determined.

Reverting to 2022 Act enacted by the previous Uhuru Kenyatta regime could have been a big blow for President Ruto’s administration.

The targeted revenue could have dropped drastically hindering the rollout of the flagship development projects and programmes.

We recall that President William Ruto had lined up a raft of lofty promises during the campaigns and this is the reason why Kenyans overwhelmingly voted him in.

He has so far made key strides in terms of launching and commissioning projects in all parts of the country.

This is despite the fact he assumed office at a time when the country was facing four major challenges; a biting drought rated to be the worst in 40 years; dilapidated economy; Russian-Ukraine war and a time when the country was recovering from devastating effects of Covid-19 pandemic.

He also faced a political backrash triggered by his opponents in Azimio leaders. This is not the first time opposition leaders would allege ‘election rigging’ and call on their supporters to come out to the streets to fight for their rights.

They had played a similar game during the era of President Mwai Kibaki and his successor President Uhuru Kenyans but they lost it out because their claims were not anchored on truth.

Just like his predecessors, President Ruto’s mind was split as he strived to calm and steady the ship.

He has since unveiled a broad based government. This marked yet another key step in his journey of building a united and peaceful Kenya.

Joseph Mutua Ndonga Is A Writer And Social Commentator