Public Participation in Kenya: When Failure Invalidates Legislation under the Constitution
Public participation is no longer a decorative phrase in Kenyan constitutional discourse. It is a binding constitutional obligation that sits at the heart of democratic governance and legislative legitimacy. Since the promulgation of the 2010 Constitution, Kenyan courts—led decisively by the Supreme Court—have made one thing abundantly clear: legislation enacted without meaningful public participation is constitutionally infirm and liable to be invalidated.
This article examines the constitutional foundation of public participation, explains why it has become a decisive ground for invalidating legislation in Kenya, and distils the Supreme Court’s guidance on what constitutes a reasonable threshold for compliance.
Understanding Public Participation under the Kenyan Constitution
Public participation is entrenched as a national value and principle of governance under Article 10(2)(a) of the Constitution of Kenya. Unlike ordinary statutory principles, Article 10 binds all state organs, state officers, public officers, and all persons whenever they apply or interpret the Constitution, enact or implement legislation, or make public policy decisions.
The obligation is reinforced in the legislative context by:
Article 118(1)(b), which requires Parliament to “facilitate public participation and involvement in the legislative and other business of Parliament”; and
Article 196(1)(b) imposes a similar duty on County Assemblies.
Read together with Article 1, which vests sovereign power in the people of Kenya, these provisions establish public participation as the constitutional bridge between popular sovereignty and delegated legislative authority.
In short, Parliament and County Assemblies do not legislate by right; they legislate on behalf of the people. Public participation is the mechanism through which that delegation is legitimized.
Why Public Participation Is Mandatory in Legislative Processes
The requirement for public participation is not rooted in administrative convenience or political courtesy. It is grounded in constitutional theory and democratic accountability.
Legislative bodies exercise delegated sovereign power. When they exclude the public from the law-making process, they sever the constitutional link between the people and the laws that govern them. That exclusion transforms what should be an exercise in democratic governance into an act of constitutional overreach.
Kenyan courts have consistently held that:
- Public participation enhances transparency and accountability;
- It improves the quality and legitimacy of legislation; and
- It restrains arbitrary or pre-determined law-making.
From a constitutional standpoint, therefore, public participation is not optional. It is a condition precedent to the valid exercise of legislative authority.
Public Participation as a Ground for Invalidating Legislation
One of the most significant developments in Kenya’s post-2010 constitutional jurisprudence is the courts’ willingness to invalidate legislation solely based on inadequate public participation.
The courts have drawn a clear distinction between:
Ordinary procedural defects, which may be cured or overlooked; and
Constitutional violations, which strike at the root of legislative authority.
Failure to conduct adequate public participation falls squarely in the second category.
Where a court finds that the public was not meaningfully involved in the legislative process, the consequence is not a warning or a directive for future compliance—it is often the nullification of the impugned statute or statutory provisions. This applies even where the law pursues legitimate policy objectives or serves pressing public interests.
The message from the judiciary is unequivocal: good intentions do not cure unconstitutional processes.
Supreme Court of Kenya Guidance on the Threshold for Public Participation
The leading authority on public participation in Kenya is the Supreme Court decision in British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & Others (2017).
In this case, the Court was invited to determine whether regulations made under the Tobacco Control Act had been enacted in compliance with the constitutional requirement for public participation. In doing so, the Supreme Court laid down principles that now define the legal threshold.
No Fixed Formula, but a Reasonable Opportunity
The Supreme Court rejected the notion that public participation can be reduced to a rigid checklist or a mechanical formula. Instead, the Court held that the Constitution requires the provision of a reasonable opportunity for the public to participate in the legislative process.
What is “reasonable” depends on the context, nature, and impact of the legislation in question. However, the absence of a fixed formula does not lower the standard. On the contrary, it places a burden on legislative bodies to demonstrate, with evidence, that their processes were genuinely participatory.
Elements of the Reasonable Threshold for Public Participation
From Supreme Court jurisprudence and subsequent decisions, several core elements emerge as constituting the reasonable threshold.
Reasonable Notice
The public must be given adequate and timely notice of proposed legislation. This includes clear information about:
- The existence of the proposed law or regulations;
- The subject matter under consideration, an
- The avenues through which the public may participate.
Notice that is rushed, obscure, or inaccessible undermines the very purpose of public participation
Reasonable Opportunity to Participate
Beyond notice, the public must be afforded a practical opportunity to engage with the legislative process. This requires:
- Sufficient time to prepare submissions;
- Accessible participation platforms, whether physical or digital; and
- Clear procedures for receiving and recording public views.
A process that technically allows participation but makes it practically impossible does not meet constitutional standards.
Access to Relevant Information
Meaningful participation presupposes informed participation. Legislative bodies must therefore ensure that:
Draft bills or regulations are made available;
- Supporting or explanatory material is provided where necessary; and
- The public is not expected to comment on vague or undisclosed proposals.
Without access to information, participation becomes illusory.
Inclusivity, Not Consensus
The Supreme Court has been careful to clarify that public participation does not require unanimity or consensus. Nor does it require that every individual or group be heard.
What the Constitution demands is inclusivity, not perfection. Parliament and County Assemblies retain the authority to make final policy choices, even where those choices diverge from public opinion. However, they must demonstrate that public views were received, considered, and weighed before decisions were made.
Context and Proportionality
The depth and breadth of public participation required vary depending on:
- The scope and impact of the legislation;
- Whether the law affects fundamental rights;
- The urgency of the legislative intervention.
For example, finance and tax legislation with nationwide impact attracts a higher threshold of participation than minor technical amendments. Urgency may justify truncated timelines, but it does not excuse total exclusion.
What Does Not Amount to Public Participation
Kenyan courts have consistently rejected several practices that are often presented as compliance but fall short constitutionally.
These include:
- Mere publication of a law after it has already been enacted;
- Token newspaper advertisements without follow-up engagement;
- Consultations conducted after decisions have effectively been made;
- Failure to disclose draft legislation before public forums; and
- Processes designed to validate pre-determined outcomes.
Where public participation appears cosmetic or performative, courts are likely to intervene.
Practical Implications for Legislative Bodies and Litigants
For Parliament and County Assemblies, the jurisprudence on public participation presents both a warning and a roadmap. Legislative bodies must:
- Plan participation early in the law-making process;
- Document participation efforts meticulously; and
- Treat public engagement as a substantive constitutional obligation.
For litigants, public participation has emerged as a powerful ground for constitutional litigation. Challenging legislation on this basis shifts the focus from policy merits to process integrity—an area where courts exercise strict oversight.
Conclusion: No Public Participation, No Valid Law
Public participation is one of the Constitution of Kenya’s most transformative innovations. It redefines law-making as a shared constitutional enterprise between the people and their representatives.
The Supreme Court has made it clear that public participation is not a procedural courtesy, a political favour, or a box-ticking exercise. It is a constitutional threshold for legislative validity.
Where that threshold is not met, the result is unavoidable: the law cannot stand.
Otunga & Associates
Advocates & Constitutional Law Specialists
We advise, litigate, and provide expert commentary on constitutional compliance, legislative processes, and public law governance in Kenya.
This article is for general legal insight and does not constitute legal advice.