PUBLIC PARTICIPATION AND COMMUNITY DISPUTE RESOLUTION Generally public participation seeks and facilitates the involvement of those

potentially affected by or interested in a decision. The principle of public participation holds that those who are affected by a decision have a right to be involved in the decision-making process. Public participation implies that the public's contribution will influence the decision. The New Constitution lays the basis for the development of a policy framework on community participation. Key provisions pertaining to this are: a) Article 1 (4), that Sovereign power of the people is exercised at the (a) National level and (b) the county level. b) Article 6 (2), the governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation. c) Article 174, the objects of devolution are to (c) give powers of selfgovernance to the people and enhance their participation in the exercise of the powers of the State and in making decisions affecting them (d) recognize the rights of communities to manage their own affairs and to further their development. d) Article 184 (1), which states that National Legislation shall provide for the governance and management of urban areas and cities and shall in particular (c) provide for participation by residents in the governance of urban areas and cities. The process of participation facilitates collective intelligence and embodies inclusiveness as it involves the participation of the whole community. Issues that the community can participate in during community dispute resolution are those touching on public policies. The community can hold deliberative participation on issues touching on development, budgetary process and funding. The functional or practical areas for community involvement are economic development, education, environmental protection, public health and policing and public safety amongst others (Yang and Callahan, 2005). Article 232 (1) of the Constitution provides for the values and principles of public service which include: (d) involvement of the people in the process of policy making and: (e) accountability for administrative acts and (f) transparency and provision to the public of timely and accurate information. For the process of public participation to be successful certain steps need to be taken in the planning; Inform;

Consult; Involve; Collaborate; and Empower.

Who is the public in ADR committees? Citizens are the owners of the government and should be involved in the decisions of the State. The public involves those who are interested in the decision making e.g. if it is a matter affecting a certain urban area then the public will include the community living in that particular urban area. This will go down to the ward and the village. If it is a matter that concerns the whole country and ultimately affects the policies of the state e.g. devolution, public finance etc. How, when, and where do you involve the public? Before this can be effectively answered the following issues should be determined; The nature and extent of involvement demanded in the decision making; The time and costs of different types of involvement; Participation processes i.e. deliberative participation in decision making should be designed purposefully and thoughtfully; Adaptation and follow-through are necessary Place where the deliberation of the decision making matters and should be thought about carefully and strategically; this can be through strategic plans which the public should take part of. The place can be at a meeting point where the community can easily access and take part in the decision making process. If it is at the village level then the village elders can convene the meeting where they normally sit and deliberate on matter that affect the villagers. Every community has a council of elders e.g. Luo Council of Elders that deliberate on matters affecting the family as a unit. In the Constitution, the Fourth Schedule Part 2 (14) which stipulates that the functions and powers of the county such as to ensure and coordinate the participation of communities and locations in governance at the local level. Counties are also to assist communities to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level. If it is at the county level then deliberations can be held at various points that encourage participation of the community. Most meetings have been

held at the city council halls as the primary and at primary schools which are comparatively widely distributed across the country. This subject to article 196 (1) of the Constitution, a county assembly shall conduct its business in an open manner and hold its sittings and those of committees in public, and facilitate public participation and involvement in the legislative and other business of the assembly and its committees. Challenges 1. ADR uses much of the rhetoric and process skills found and developed in public participation experiences. Beyond their similarities, ADR and public participation have differences that lead to conflict between the two. Public participation over the years has been driven primarily by values of empowerment, creativity and open access to government. ADR while not ignoring such values has been leaning more on the values of efficiency, timeliness and cost-effectiveness of decision making process. These values of empowerment, open system, timeliness and efficiency can conflict. Parallels can be seen in traditional political science literature with the concept of interest articulation (i.e. public participation) and interest aggregation (i.e. ADR) 1. For example there have been ADR cases that ignore the need for public participation such as in the United States mediated policy dialogues and negotiations completed by the United States federal agencies responsible for producing a manual defining wetlands were challenged adversely affected business interests and communities on a variety of bases one of them being insufficient public participation. 2. Taking due account of the outcome of the public participation in community dispute resolution-Implementation problems include the lack of proper regulation of the public participation process, including with regard to early notification, and the lack of procedures for taking comments into account. The public is often not informed as to why comments have not been taken into account. 3. Access to information in the public participation process- incomplete or inaccessible information. 4. Financing of the activities can prove to be more difficult since the money may be insufficient, issues of corruption often emerge, lack of proper use of the money e.g. use it for other purposes other than encouraging public participation and community dispute resolution.
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Available at <http://planning.usace.army.mil/toolbox/library/IWRServer/Twelve_Challenges_for_Pubic_ Participation_Practice.pdf> Accessed on 25th August 2013.

Also most participants seek transport reimbursements or lunch when they attend such activities refusing to give proper information for free. 5. Lack of gender sensitive public participation in decision making process- the decision making process may be centred on one side of the gender balance e.g. focus on the issues affecting the girl child and forget those that affect the boy child in the process. Also the participants can be of one gender thereby giving and biased view of the opposite sex. Mostly women, girls and children are side-lined in the decision making process that is male dominated. 6. Lack of awareness is a factor since the public will not be able to take part in the deliberative decision making process if they do not know or have an idea about the issues they are dealing with and the importance of their contributions to the decision making process as a community. 7. Lack of education e.g. illiteracy among the participants, relevant education on the particular issues to be discussed such as already existent law and regulation on that area, the statistics on the issues arising (how many are affected, how the decision will affect issues raised)etc. Illiteracy is taken count of as a challenge in the second schedule of the Urban and Cities Act, section 2(3) on the participation of citizens states that when establishing mechanisms, processes and procedures under subsection (1), the city or urban area shall take into account the special needs of (a) People who cannot read or write. Conclusion The basis for public participation community dispute resolution can be inferred from the statutory duty of citizens to pay taxes for service delivery. This means that the public/community are not only consumers of services but essential financiers of the government. Public participation in especially in administrative decision making is thus inclusive of goal setting, determination of strategies, policies, and monitoring and evaluating government services. Community participation activities would then relate to the techniques and mechanisms such as public hearings and sittings, community advisory councils and community panels, neighbourhood or resident association meetings and community surveys.