Court Declares Public Participation an Important Aspect of the Legislative Process

Amos Kiumo & 19 Others v Cabinet Secretary, Ministry of Interior &

Cordination of National Government & 8 Others

High Court at Meru

Petition No. 16 of 2013

J Lesiit, J A Makau, J Bwononga

December 18, 2014

Reported by Emma Kinya Mwobobia

Brief Facts

The facts of the case are that in 2012 the Igembe Central District was created in line with the Government Policy of converting all constituencies into Districts.  The District was curved out of 3 locations from Igembe North District namely Akira Ngondu, Athiru, Rujiine and Kawiru and 3 locations from Igembe South District namely Igembe East, Njia and Kangeta.

 Sometimes in 2012, the Government tasked District Commissioner Igembe South to be convener of the leaders and stakeholders meeting with a view of identifying the District Headquarters of the Igembe Central District.

 On 27^th May, 2013 the District Commissioner Igembe South District accepted a Report from a Committee appointed earlier in which Kangeta market was recommended to be the Igembe Central District Headquarters. The Petitioners were aggrieved by the recommendation and therefore filed this Petition. They alleged that the Kangeta Market was imposed as the District Headquarters without inputs from the stakeholders, leaders, residents,and meeting the agreed criteria thus unconstitutional for lack of public participation and for discrimination against the residents of the 5 locations.

Issues

1. Whether the Petition was defective since the alleged violations were not pleaded and no particulars of the allegations of the infringements had been set out
2. Whether the Petitioners had locus standi to prosecute the Petition;
3. Whether the Court had jurisdiction to determine the Petition
4. Whether the process of determining the proposed District Headquarters was a matter of public interest requiring public participation and whether there was public participation

Constitutional law – jurisdiction – jurisdiction of the High Court –jurisdiction of the High Court  in determining constitutional matters regarding public participation in matters of public interest – Constitution of Kenya, 2010 articles  162(2)(b),165(3) (b)

Constitutional law – public participation - degree of participation in the law-making process – whether the public were accorded reasonable opportunity in the law making process - what amounted to a reasonable opportunity – whether process leading to the determination of the District Headquarters complied with the public participation standards required in the Constitution.

Held:

1. The Petition as drafted was wanting in that the facts relied upon and Constitutional provision allegedly violated were not all stated in the body of the Petition but at the title of the Petition instead. The particulars in support of the Petition were generalized instead of being specifically pleaded with some degree of precision and setting the manner in which each Respondent in the Petition had violated which specific Articles of the Constitution. The Respondents in the instant Petition had not sufficiently been described nor were their functions and the role each played in violating the specified Articles of the Constitution.  The 1^st, 2^nd and 4^thRespondents had not been described and their function and what Articles of the Constitution they violated.
2. At paragraph 22 of the Petition the Petitioners aver that the Respondents violated Articles 2, 4, 10, 27, 73 and 75 of the Constitution by proposing to create a District Headquarters arbitrarily. Under paragraph 17, 19, and 20 general complaints were raised to the effect that there was no input from stakeholders and leaders; that the choice of the Headquarters would cause difficulties to some members of the District who will be forced to travel long distances; and that the decision would marginalize far flung locations. At paragraph 18 the Physical Planner, the District Commissioner and the local Member of the National Assembly were accused of imposing the location of the new District Headquarters. It was therefore apparent that the Petitioners had not pleaded with some degree of precision the specific Articles of the Constitution violated, the party that violated them and the manner in which they had been violated.
3. Even though the Petition quoted the relevant Articles of the Constitution alleged to have been violated under the title to the Petition, it did not state these Articles specifically under the paragraphs of the Petition, detailing the alleged violations and by whom they were violated as required. Paragraph 22 of the Petition where certain Articles were quoted in general terms did not suffice because the Petitioners did not plead their case with some degree of precision, neither did they set out the manner in which the Constitution has been violated and by whom.
4. The little or no particulars of alleged violations must have presented difficulties to the Respondents to know what it was they were alleged to have done which violated the Constitution, and therefore how to respond to the Petition.         
5. The National Values provided under Article 10 of the Constitution provided for public participation, inclusiveness, transparency and accountability. This had broadened access to justice and any party feeling aggrieved had a right to access the court so long as the litigation was not hypothetical, abstract or an abuse of the court process.
6. By dint of Articles 22 and 258 of the Constitution, any person could institute proceedings under the Bill of Rights either for themselves or on behalf of others as provided there under.  The Petitioners were members of the Igembe Central District and their complaint was that their rights as members of that community were threatened by the imposition of the District Headquarters. Therefore, the Petitioners had the locus standi to file this Petition.
7. Article 23 of the Constitution vested the High Court with jurisdiction to hear and determine applications for redress of a denial, violation, or infringement of, threat to, a right or fundamental freedom in the Bill of Rights. Therefore, all persons and institutions were subject to review by the High Court in exercise of its jurisdiction to safeguard the principles and values of the Constitution and to uphold its supremacy.
8. Section 6 of the Fifth Schedule to the Independent Electoral & Boundaries Commission (IEBC) Act required the IEBC to apply the principles of public participation and involvement in its consultative processes. That would have been done by conducting public sensitization on the proposed boundaries. The re-distribution of administrative units had not been achieved.  Had the issue of administrative boundaries been determined with finality, the location of a District Headquarters would also have been determined with ease.
9. The determination of a location for a District Headquarters was a function of the National Government. The County Government did not have a legal framework to determine the issue. That said however, Legislation was silent on how the District Headquarters were to be determined.
10. The Fourth Schedule was silent on the body that was responsible for the determination of District Headquarters. Consequently, in line with article 186 (3) of the Constitution, the function of determining the location of a District boundary and the Headquarters as well was therefore a function of the National Government it was the role and function the District Commissioner Igembe North District he undertook to execute, as the representative of the National government and of the Executive at the District level.
11. The burden of proof of showing that there had been no public participation or that the level of public participation within the process did not meet constitutional standards was on the Petitioners.
12.  Igembe Central District was created by the defunct Interim Independent Electoral Boundaries Review Commission (IIEBRC). The Commission was established under section 41B of the repealed Constitution. IIEBRC’s mandate under the former Constitution was therefore advisory in nature. However after the promulgation of the Constitution of Kenya 2010, Parliament deemed it necessary to make transitional arrangements for the completion of the IIEBRC work which were contained in the Fifth Schedule to the IEBC Act.
13. Section 6 of the Fifth Schedule to the IEBC Act required the IEBC to apply the principles of public participation and involvement in its consultative processes. That would be done by conducting public sensitization on the proposed boundaries. The re-distribution of administrative units had however not been achieved. Had the issue of administrative boundaries been determined with finality, the location of a District Headquarters would also have been determined with ease.
14. The determination of location for a District Headquarters was a function of the National Government. The County Government did not have a legal framework to determine a location for the District Headquarters. However, legislation was silent on how District Headquarters were to be determined and this was demonstrated by dint of article 186(1) and (3) which dealt with respective functions and powers of National and County governments.
15. The burden of proof of showing that there had been no public participation or that the level of public participation within the process did not meet constitutional standards was on the Petitioners.
16. Public participation had constitutional underpinning as evidenced in the Preamble to the Constitution, 2010 and was one Kenyan National Values under Article 10. The Preamble to the Constitution recognized the aspirations of all Kenyans based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law. It also acknowledged the people’s sovereign and inalienable right to determine the form of governance of the country. The concept of Public participation may be fulfilled in different ways open to innovation, but such ways should be documented and reduced to Reports.
17. Before any attempt was made to engage the public in the manner under review, there ought to be dissemination of information necessary to enable for effective participation. The public ought to be given adequate information whenever public policy decisions were intended and the public be afforded a forum in which they could adequately ventilate their views. The information ought to be given to the public before the actual public participation took place so that the public would know what the issues were, the decision under consideration, and the purpose for the participation in order to the make the dialogue effective and informed.
18. The test of what would be considered as reasonable steps  to afford the public a chance to participate would depend on, for instance the nature and importance of the matter and the intensity of effect on the public. The other test was the need to consider public interest.
19. The National Assembly had a broad measure of discretion on how it would achieve the object of public participation.  How it was affected would vary from case to case but it ought to be clear that a reasonable level of participation had been afforded to the public.
20. There was proof that the invitations to the public meetings by the District Commissioner were to the general public without any discrimination or limitations. It was not necessary that each and every member of the community was invited or attended. The principle was to ensure information relevant to the process under consideration reached the community and that the purpose of the meeting was known in advance. Those who heard of the meetings were aware of the purpose and could therefore make informed and effective contributions at the two forums. According to the evidence, the meetings were held on the dates and the times as per the notices given. For those who got the information and wished to attend the forums, they had the chance to do so.
21. Each party present at the meeting was given ample opportunity to express their views. The test whether the public participation was good or ample could not be measured by the outcome of the decision reached. What was required was that a proper consideration of the public interest was made by empowering the public to participate on the issue and allowing them an opportunity to ventilate it at the forum held for that purpose.  In the circumstances, the public was engaged at several levels of the considerations and were involved in the meeting that identified possible sites for the Headquarters and also in the physical site visit to the four identified Centres. Similarly, they were involved in the final deliberations when the Report on the findings of the Select and Technical Teams was discussed.  Therefore, there was great public engagement at every level of the deliberations.
22. Being involved did not mean that one’s views ought to necessarily prevail. There was no authority for the proposition that the views expressed by the public were binding on the Executive or Government. Government certainly could be expected to be responsive to the needs and wishes of interest groups and the public generally but they were not bound by these views. The public participation which the Constitution envisaged was supposed to supplement and enhance the democratic nature of decision making process especially where issues of public interest were under consideration. It was not supposed to conflict with or even overrule or veto them. While public involvement could not be meaningful in the absence of a willingness to consider all views expressed by the public, that did not mean that those expressed views were binding and ought to have carried the day. There was opportunity given to the public to express their views and that views were taken into consideration.
23. (Obiter)“Under the Preamble and Article 10 of the Constitution, public participation was provided for and recognized as one of our National Values as a Nation. There was however no legislative provisions governing how that right to public participation in the conduct of public affairs should be realized. Some legislation spelling out how that right can be actualized, the nature and the scope of it, and the form it may take needs to be enacted. That way we shall not be roaming in the dark trying to decide what public participation means and entails. The need for legislation setting out how Public Participation should be actualized cannot be over emphasized.”

Petition dismissed. Each party to bear its own costs.