Principles that guide the application of the principle of public participation.

Brief facts

The petitioner sought a declaration that the amendment of the Nyandarua County Alcoholic Drinks Control Act No. 4 of 2019 without conducting sufficient public participation was illegal.  The petitioner averred that the 1^st respondent amended the Nyandarua County Alcoholic Drinks Control Act, No. 4 of 2019, (hereinafter referred to as the Mother Act) without conducting the mandatory public participation and therefore denting the petitioner herein, the people of Nyandarua County and more so stakeholders (being bar owners) from the alcohol and entertainment sector a right to participate in the said exercise that clearly made decisions affecting them, making the said amendment unlawful for offending the provisions of articles 174(c) and 196(1)(b) of the Constitution of Kenya, 2010.

Issues

1. Whether the Nyandarua County Alcoholic Drinks Control (Amendment) Act, 2020 was constitutional for lack of public participation.
2. What were the principles that guided the application of the principle of public participation?

Held

1. According to the Public Participation in the Legislative Process, Factsheet No. 27 by the National Assembly, public participation could be defined as the process of interaction between an organization and public with an aim of making an acceptable and better decision. The process involved informing, listening, dialogue, debate and analysis as well as implementation on agreed solutions. Public access and participation in both the national and county legislature was guaranteed specifically under articles 118(1)(b) and 196 (1)(b) of the Constitution which directed the national and county legislatures to respectively facilitate public participation. Furthermore, the legal framework for public participation was guaranteed by articles 10, 27, 33, 35 and 119 of the Constitution of Kenya, 2010.
2. Section 87 of the County Government Act, 2012 provided for citizen participation and dictated the principles  which the same was to be based on. Section 115 made public participation in county planning processes mandatory.
3. The right to public participation did not impose a duty to the agency to accept the views given as dispositive. However, caution had to be taken as to contend that public views ought not to count at all in decision making would negate the spirit of the Constitution. Public participation was meant to enrich the views of the office holders with views of those most affected by a policy or decision at hand. It was not meant to usurp the democratic role of the office holders.
4. Public participation did not mean that everyone had to give their views, which was impracticable. Rather that there ought to be evidence of intentional inclusivity in the participation program and which, on the face of it, took into account the principle that those most affected by a policy, legislation or action had to have a bigger say and their views more deliberately sought and taken into account. That notwithstanding, there was no attendant requirement that each individuals views would be included in the final policy or law: the public authority had no duty to accept any and every view, the opposite of which would effectively neutralize and stall the exercise of the authoritys mandate.
5. There was no standard on the proper threshold of public participation as a principle of governance in managing the affairs of state and county government affairs.
6. The burden of proof lay with the respondents to demonstrate there was public participation. The court doubted whether the respondents carried out any public participation as they had not adduced any evidence to prove any efforts they took towards carrying out the same. The respondents did not adduce any evidence that they made an effort to collect views from the public in addition to issuance of any notice to that effect. The position in the respondents letter to the petitioner that the legislative process included involvement of the people did not in any way prove that they put in place mechanisms to conduct public participation during the amendment process. Further, the 1^st respondent, the Speaker of the Nyandarua County Assembly, could not ascertain whether any public participation was carried out.
7. The County Assembly had a constitutional obligation to facilitate public participation on policy formulation, legislative process and any other decision affecting residents of the county. However, the respondents did not adduce any evidence to justify that any reasonable efforts were made by the Nyandarua County Government to facilitate public participation in accordance with the principles of public participation as entrenched in sections 3 and 87 and 91 County Governments Act in line with articles 10, 174 and 196 of the Constitution.
8. No reasonable opportunity was given to the public and all interested parties. The residents of Nyandarua and relevant stakeholders were not accorded with timely access to information that was relevant to a process of legislation, which was the amendment to facilitate the appreciation of the issue for consideration and an opportunity to make a response especially by the stakeholders. The petitioner on behalf of other the bar owners and the public at large alleged that none of them were consulted during the amendment process; an allegation the respondents had not disproved. No explanation(s) was advanced to account for the flawed participation processes.
9. Time may be a relevant consideration in determining the reasonableness of a legislatures failure to provide meaningful opportunities for public involvement in a given case. There could be circumstances of emergency that required urgent legislative responses and short timetables. The respondents did not demonstrate that there was any apparent emergency or urgency in setting up the Amendment Act and even so, that would not permit them to not facilitate public involvement.
10. No governmental agency should encumber another to stall the constitutional motions of the other. The court would not hesitate to superintend over the County Assembly and other constitutional bodies when they sit in their quasi-judicial capacities. Article 2(4) of the Constitution in that respect provided that any law, that was inconsistent with the Constitution was void to the extent of the inconsistency, and that any act or omission in contravention of the Constitution was invalid. Article 165(3) (d)(i) of the Constitution provided that the High Court had jurisdiction to determine the question whether any law was inconsistent with or in contravention of the Constitution. Further, article 259(1) of the Constitution stipulated that when interpreting the Constitution, the court should do so in a manner that promoted its values and purposes. One of the values and principles of the Constitution was public participation.
11. There wasnt sufficient public participation carried out in respect of the Amendment Act. The respondents actions of deleting and amending clauses of the Mother Act without subjecting the same through the constitutional compliance step of public participation were ultra vires, illegal and therefore a nullity.
12. The county government failed to disseminate necessary information on the impugned Amendment Act as required and that was in breach of the petitioners rights to information under article 35 of the Constitution. However, the petitioner never invoked the provisions of Access to Information Act, specifically sections 8,9 and 14 which provided process of application of requisite information under article 35 of the Constitution and enforcement in event of denial of access.
13. Vide the Amendment Act, the resultant committee had already began the process of issuing licenses. The Amendment Act portended implications concerning stakeholders in the hospitality and entertainment sector such as the bar owners and the public at large who were not given adequate opportunities to give their views on the legislation. Furthermore, given the nature of the subject matter and implications of the Amendment Act, the public participation efforts made by the county government were not reasonable and they fell below the standard required on such a matter. The enactment of the Amendment Act was in contravention of articles 10, 174 and 196 of the Constitution as read with sections 87 and 91 of the County Governments Act.
14. In order to give effect to the right to enforce the Constitution, the power of the court to award an appropriate remedy had to be implied. The court had the power to issue any remedy as was necessary to ensure that the Constitution was not threatened or violated. Such relief could include conservatory orders and a declaration of invalidity of any law that was inconsistent with the Constitution.
15. Any law that was inconsistent with the Constitution was null and void. However, the court was empowered to deal with the consequences of such invalidity bearing in mind its duty to interpret and apply the Constitution in a manner that, inter alia, promoted good governance. Article 258 of the Constitution did not limit the courts jurisdiction to fashion an appropriate remedy to deal with the invalidity of the law. It was accepted that the court could suspend the declaration of invalidity in order to deal with the consequences of such invalidity.
16. In order to protect the Constitution, the court had to be creative in fashioning appropriate relief that was tailored to the facts of the case and was consistent with the values of the Constitution. Suspension of the declaration of invalidity would be appropriate in these circumstances as it would allow the county legislature time to correct the defective legislation while avoiding chaos and disarray in a system that had been established for over a while. Such a move supported good governance, a core national value under article 10 of the Constitution. The impugned legislation was defective in some respects, from the manner it was enacted, and especially want of public participation in terms of meeting the applicable constitutional standard/threshold.
17. The impugned Act had set a system and institution that had been running over a while including a licensing body and licenses issued for the next 12 months to the alcoholic drinks dealers/business community. The funds arising therefrom had entered into legal obligations that needed to be dealt with. A temporary suspension of the invalidity of the Act was the appropriate relief in the circumstances.
18. The court took judicial notice of the licensing cycle and the fact that a license issued had a life span of 12 months. There was also the need to protecting the lives of alcoholic drink users which would be at risk without the regulation in place pending re-enactment of the impugned legislation. In order to allow for transitional and corrective mechanisms, suspension of the invalidity of the impugned legislation for a period of twelve months from the date of the instant judgment was a reasonable period. The county government and legislature were entitled to remedy the defects in the period either in form of new legislation or other meant within the Constitution taking into account the findings of the court. The Act could have been repealed earlier by an Act of County assembly or await the expiry of the suspension, whichever came first.