How a series of court cases have shaped public participation

In striking down the 2023 Finance Act, the court said Parliament’s decision to bypass public participation and the legislative process and introduce 18 completely new tax provisions without going back to the public was a “serious assault” on the Constitution.

A three-judge bench of the Supreme Court said it agreed with one of the appellants, Fredrick Onyango Ogola, that public participation was not included in the Constitution for cosmetic purposes.

“In the words of Dr Ogola, these amendments were mischievously sneaked into the Act in order to steal a match. Such conduct cannot be rubber-stamped by this court… They suffer from procedural and constitutional deficiency. They are stillborn. They cannot be allowed to remain in our law books,” the judges said.

The court agreed with the appellants’ position that allowing Parliament to introduce entirely new sections after the public participation period has ended opens the door to mischief, as MPs could withhold some sections and introduce them at a later stage, effectively bypassing public participation.

The judgment has strengthened the place of participation in a participatory democracy such as Kenya by overturning the earlier position of the High Court that the digression of Parliament was not of such a “significant impact as to cause an injustice”.

The High Court’s position was that it was “a recipe for chaos” to require Parliament to engage in public participation every time a law is amended during the legislative process.

The Supreme Court’s ruling joins a number of others that have attempted to dissect what constitutes meaningful and appropriate public participation and empower the public to have a greater say in the laws and regulations that govern them.

A three-judge bench of the High Court had ruled on September 13 last year that there was no express obligation on Parliament to give written reasons for accepting or rejecting proposals from members of the public.

Last Wednesday, however, the Supreme Court departed from this position, saying that the feedback was mandatory in order to increase accountability and transparency. 

The Supreme Court’s ruling set a new precedent by deviating from several rulings from previous court cases that the cross-appellants, including the National Treasury and the National Assembly, had relied on to argue their case.

For instance, they had relied on a 2019 case pitting banks against the Attorney-General and Central Bank of Kenya, in which the High Court held that Parliament is allowed to amend a proposed law as the bill goes through various stages of enactment. As a result, they had argued, proposals introduced by MPs after public participation effectively incorporated what had been gathered from the public.

They argued that their case was no different from that of 2015, which pitted the Mui Coal Basin Local Community and 15 others against the Ministry of Energy, in which it was held that public participation did not mean that everyone had to give their views, or that the authority had a duty to accept every view presented to it.

A 2019 case between BAT Kenya and the Cabinet Secretary for the Ministry of Health and others added to their argument. The court then ruled that while public participation must be genuine and cosmetic, it did not mean that “all proposals and views presented during public participation must be accepted”.

Their position also echoed a 2013 case between Nairobi Metropolitan PSV Saccos Union and County of Nairobi, which held that public participation “is not the same as saying that public views must prevail”.

However, the Supreme Court has now raised the bar, drawing on cases from within Kenya and other countries such as South Africa, Canada and India. The High Court was reminded of its own ruling in a 2016 case in which the public sued the Kiambu government over public participation, and ruled that while public views and suggestions are not binding, they should not be treated as a “mere formality”.

Another landmark ruling by the Supreme Court was that Parliament must now inform participants and the wider public how it has used their views and whether or not those views have been incorporated into official policy or advice.

This is a departure from the High Court’s original position that it was desirable, but not mandatory, for Parliament to give written reasons for rejecting views gathered from the public.

The Supreme Court said the requirement for transparency and accountability from any state organ was “not a matter of choice but a mandatory constitutional imperative” and therefore Parliament could not be insulated from providing feedback.

“Vesting in Parliament the arbitrary power to reject or ignore the contribution from the public without explanation or justification is the surest way of undermining public participation,” the court said.

The Supreme Court agreed with the appellants who cited the practice in other countries. For example, they cited Canada, where in 2019 the Supreme Court of Canada justified the rationale for giving reasons to be the need to “develop and strengthen a culture of justification”.

According to the court, public participation is based on the principle that those who are affected by a decision have the right to participate in the decision-making process.

The long-held wisdom of precedence was also put to the test. The Supreme Court used the example of Pevans East Africa Limited and others vs the Chairman of Betting Control & Licensing Board and seven others in 2018 to show that small differences can mean a lot when deciding whether two court cases are the same.

In the Pevans case, the High Court in 2018 held that Parliament was not required to undertake fresh public engagement on new proposals and that such a requirement would bring the legislative process to a complete halt and undermine Parliament’s ability to fulfil its constitutional mandate.

The High Court had argued that in approving the Finance Bill, it was bound by the ruling in the Pevans case that once Parliament has heard the views of the public, it is free to make changes to the Bill during debate before it is passed.

“The National Assembly was not required to re-submit the amendments to public participation on narrow issues that were within what was contemplated within the objects and memorandum of the Bill,” the High Court ruled.

The Supreme Court, while departing from what the High Court considered to be precedent, cited a 1968 case in which it was held that  a “decision is only an authority for what it actually decides.” In other words, no case is really exactly the same as another case that is similarly decided.

“It is settled law that a case is an authority only for what it decides and not for every observation found therein or what logically follows from the various observations made in it,” Kenya’s Supreme Court ruled on Wednesday.

“A little dissimilarity in facts or additional facts may make a lot of difference in the precedential value of a decision. A close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect.”

The court noted that in the Pevans case, Parliament did not have to go back to the public to change the rate of tax on betting revenue because it was in the original bill and the only thing they changed was to reduce it after listening to the public.

According to the Supreme Court, the introduction of entirely new provisions, as Parliament did in the Finance Bill, was an “impermissible serious legislative flaw” and their purported enactment into law was “imperfect and a mockery” of the legislative process.

“The High Court erred gravely when it followed the Pevans case blindly; which was inapplicable to the facts and circumstances of the case before it,” the Supreme Court judges said.

The Supreme Court also referred to a 2006 case in which the Constitutional Court of South Africa was forced to set out factors to be considered in determining whether or not public involvement is appropriate. The court held that public participation is so important that “saving money and time in itself does not justify inadequate opportunities for public involvement”.

Kenya’s Supreme Court took a similar approach in a 2017 case between BAT Kenya and the Cabinet Secretary, Ministry of Health.

The case was an opportunity for the court to follow the lead of the Constitutional Court of South Africa in setting out guiding principles for public participation, stating that the absence of a prescribed legal framework for public participation is not an excuse for not conducting public participation.

“Public participation must be real and not illusory. It is not a cosmetic or public relations act. It is not a mere formality to be undertaken as a matter of course just to fulfil a constitutional requirement.”

The Supreme Court went on to issue guidelines on public participation, stating that public participation and consultation is a living constitutional principle that speaks to the sovereignty of the people.