Public participation in policymaking and governance is a fundamental tenet of any democratic dispensation. Public participation during policy formulation stages enhances the legitimacy of the process and the policies and makes implementation of such policies easier. Public participation also promotes inclusivity and improves governance in a way that makes government decisions and priorities reflect the needs and realities of its citizens. This practice ensures that the public has a voice and influence over policy outcomes. The public’s voice is protected by Article 33 of the Constitution of Kenya (2010) which provides for respect for the freedom of expression of all participants during public participation. Therefore, the Government of Kenya will be well advised to adhere to this cardinal principle and involve the public in policy processes for desirable outcomes.
Recent Public Policy Statements
Recent policy statements in respect to the logging ban, the Mau forest evictions, and the Finance Bill of 2018 have demonstrated a lack of public participation. Protests by the business community against the logging ban, politicization of the Mau forest evictions, and subsequent displacement of people and ethnic clashes in Narok and Nakuru counties following the evictions are just but a few examples denoting the absence of public’s voice. Enormous public resentment and outrage, protests by the private sector, unfavorable public opinion, tenacious civil society activism, and strenuous implementation of parts of the Finance Bill (2018) also point to the fundamental problem of lack of inclusion and public participation in its formulation. What is worse, is the lack of proper policy planning associated by these recent guidelines especially on stabilization of prices or inflation, resettlement of evictees and the effectiveness of public service restructuring in service delivery.
The Short-Term Impact
The logging ban in February 2018, for instance, was a Cabinet decision that did not benefit from public participation. This ban has led to the loss of direct and indirect jobs, doubled timber prices, and increased costs in the construction industry, prompting the government to lift the ban on private commercial forests. The government lacked a sector stabilization plan which should have been in place before the ban. This policy needed proper timelines to allow for proper adjustments by stakeholders in a way that could not affect jobs nor double timber prices. The subsequent eviction of people from Mau and Lelan forests is yet another Cabinet decision which has led to the displacement of about 2,300 families from Mau and 500 more from Lelan. Evictees lost their livelihood systems and were left starving and exposed to the elements. Some of them contracted pneumonia, experienced diarrhea and other water-borne diseases in their makeshift camps. The government lacked a resettlement plan which could have actually preceded evictions, and a livelihood stabilization plan which could have followed the resettlement. As regards to the Finance Bill, enough consultations with various stakeholders in the private sector and enough engagement with the public through public participation forums would have created new viable options of raising revenue without affecting the cost of living and the cost of production in the country. It could also have enabled the government to reschedule tax plans and adopt sustainable timelines across stakeholders.
Key Constitutional Provisions
The Constitution of Kenya (2010) unequivocally cedes sovereignty to the people of Kenya. In cognizance of the representative democracy in Kenya, the Constitution advises that the people exercise this sovereignty directly or indirectly through their representatives as captured in Article 1(2). This provision speaks to the importance of the public in governance in Kenya and establishes principles of inclusivity, democracy and participation of the people, good governance, integrity, transparency and accountability in governance as captured under Article 10(2a-c) of the Constitution.
The top-down government policy directives which imposed the logging ban and sanctioned forest evictions disregarded Article 69(1d) that provides for public participation in the management, protection and conservation of the environment. On the other hand, the national assembly passed the Finance Bill (2018) which imposed 16 per cent Value Added Tax (VAT) on petroleum products. The Parliamentary Committee on Budget and Appropriations thus disregarded Section 10(2) of the Public Finance Management Act which obligates it to observe the principle of public participation on budgetary matters and Article 201(a) of the Constitution on openness, accountability and public participation in financial matters. The Cabinet Secretary for National Treasury and Planning also failed to subject the Bill to public participation in accordance with Section 35(2) of the Public Finance Management Act that requires him to do so. All these procedural and Constitutional violations can be further confirmed with the subsequent public outrage over the Bill.
The Unforeseen Sequels
The logging ban, besides not having involved public participation, also locked out the input from the private sector. There was even blanketing of the ban to include private commercial forests. This led to a sharp shortage of timber, further doubling timber prices countrywide. For instance, construction poles which cost Ksh. 150 now cost Ksh. 300. This price spike in timber means the proportional increase in timber products and construction costs in the construction industry. The initial blanket logging ban had to be revised to allow operations of private commercial forests.
On the other hand, forest evictions have destabilized livelihood systems of more than 2,800 families and created animosity between communities around the forests. This has led to violent ethnic clashes especially relating to Mau evictions, which have caused displacement of more than 400 families displaced in Nakuru County and 200 more in Narok County, and scores of people dead and injured.
At the same time, the Finance Bill (2018) has fared ill with public opinion, the civil society and the private sector. This is because of a new raft of taxes proposed in the Bill, especially the 16 per cent Value Added Tax on petroleum products. In July, activist Okiya Omtata moved to High Court and had a number of these taxes suspended on grounds of lack of public participation and adequate legislative input. In September 2018, two days after the 16 per cent VAT on petroleum products came into effect, the country’s main petroleum dealers, Kenya Independent Petroleum Dealers Association (KIPEDA) went on strike. They stopped fuel transportation across the country, causing fuel shortage amid rising prices occasioned by the introduction of VAT, further increasing fuel prices across the country. A lobby group went to court on September 6, 2018 and had the High Court in Bungoma suspend the 16 per cent VAT on petroleum products. This further put the implementation of the Finance Bill in jeopardy. Mounting public, civil society and political pressure on the Members of Assembly and the President, has led to President Uhuru Kenyatta rejecting the Bill but provisionally revising the fuel tax downwards to eight per cent. However, there is still dissatisfaction with the president’s action as many Kenyans expect petroleum products to be zero-rated. The 16 per cent VAT on petroleum has increased producer and consumer prices countrywide. On August 21, 2018, Kenya Private Sector Alliance (KEPSA) Chief Executive, Carole Kariuki, while voicing the private sector’s concerns against the 16 per cent VAT imposition on petroleum products warned that “fuel being the main input in our energy-intensive sectors, the projected rise in pump prices will result in an increase in the cost of production and manufacturing of commodities by both small and big businesses, an increase in cost of transport and an increase in cost of household consumption of goods and services.” This means increased cost of living for ordinary citizens, more so, the poor households. In the meantime, Kenyans living on the border with Tanzania, Uganda, and Ethiopia have been buying their fuel and other consumer goods in these neighboring countries.
The government and the National Assembly should always allow public participation so to get a balanced policy position that resonates with the socio-economic realities of the general public. This will boost policies’ legitimacy and encourage public support in their implementation. Further, public input in policymaking will help the government in policy planning and hence policy timelines, options and targets can always be adjusted in a mutually agreeable formula for the best outcomes. Otherwise, shrouding policymaking in esoteric executive and legislative circles promotes exclusivity and elitism that end up with insensitive policies. The implementation of such policies might be interpreted as the imposition of the executive’s will on the public and thus, may undermine good governance, national security, and basic human rights. The civil society and individual members of the public should always rise and pursue legal mechanisms of putting the government’s exclusivity in check, protect public interest, advocate for the rule of law and protect the Constitution, where the National Assembly has failed.