Public Participation Threshold

Recently, the court in Mugo & 14 others v Matiang’i & another; Independent Electoral and Boundary Commission of Kenya & 19 others (Interested parties) [2022] KEHC 158 (KLR) adjudged that’ “A list of attendees of a meeting by itself would not meet the required threshold to prove that public participation had taken place.”

The main issue for determination was whether the creation of Igambang’ombe sub-county was done legally due to lack of proper public participation from the people of Chuka Sub-tribe which occupied Chuka Igambang’ombe Constituency. The new Constitutional dispensation now requires that every decision whether administrative, regulatory, or statutory in so far as it affects the lives of the people, must have key components of public participation. It is important to note that though the Constitution is silent on what constitutes public participation, the essential features have been developed over time through case law.

To attain the principle of public participation the following parameters are required:

1. There is evidence of inclusivity with all the stakeholders or those affected by an administrative policy or law given an opportunity to express their views;
2. The affected people have to be given sufficient notice of the nature of the decision to be made and when the consultations will be held;

• The government agency or a public officer in charge of the programme of public participation must hold it in good faith rather than a mere formality; and

1. A public participation exercise has to show intentional inclusivity and diversity and cannot disregard bona fide major stakeholders.

The court held that to attain the Constitutional threshold, the engagement must be real, meaningful, and effective. It is not enough to rely on attendees’ sheets with no supporting document to prove public participation. The court gave an order declaring the creation/establishment of Igambang’ombe sub-county by the respondent was therefore illegal, unconstitutional and a nullity because the said sub-county was created without Constitutional principles of public participation and inclusiveness.