Governance in Devolved Kenya

GOVERNANCE IN THE DEVOLVED KENYA: PROSPECTS FOR PUBLIC PARTICIPATION AND DEMOCRACY
GOVERNANCE IN THE DEVOLVED KENYA

PROSPECTS FOR PUBLICPARTICIPATION AND DEMOCRACY
Wafula Makokha Timothy
Dissertation submitted to University of Nairobi in partial fulfillment of the degree of Bachelor of Laws
(LL.B)
Supervisor:
Page 1
Declaration
Page 2
Acknowledgement
Page 3
Dedication
Page 4
Abbreviations and Acronyms

CIOCConstitution Implementation Oversight Committee
CSO.Civil Society Organization
MP.Member of Parliament
CIC...Commission for the Implementation of the Constitution
CoE...............Committee of Experts
KPPKenya People's Union
IPPG.Inter-Parties Parliamentary Group
CKRC.......Constitution of Kenya Review Commission
DFRD...District Focus for Rural Development
UN....United Nations
KHRC.......Kenya Human Rights Commission
UDHR..United Nations Declaration on Human Rights
NGO...Non-governmental organization
CDF......Constituency Development Fund
LATF....Local Authority Transfer Fund
NARC..National Rainbow Coalition
PNU..........Party of National Unity
UNDP......United Nations Development Programme
USAID.....U.S. Agency for International Development
KADU..Kenya African Democratic Union
KANU..Kenya African National Union
Page 5
Page 6
Contents
Abbreviations and Acronyms.............................................................................................................................4
CHAPTER ONE: INTRODUCTION AND RESEARCH METHODOLOGY .........................................................................5
1.1 Introduction ............................................................................................................................................5
1.2 Background of the study..........................................................................................................................8
1.3 Objectives of the Study ..........................................................................................................................14
1.4 Research Questions...............................................................................................................................14
1.5 Justification of the study ........................................................................................................................15
1.6 Hypothesis ............................................................................................................................................16
1.7 Literature Review..................................................................................................................................16
1.8 Theoretical Framework..........................................................................................................................20
1.8.1 Devolution..................................................................................................................................... 20
1.8.2 Defining decentralization ................................................................................................................ 20
1.8.3 Dimensions of decentralization ........................................................................................................21
1.8.4 Forms of decentralization................................................................................................................22
1.8.5 Characteristics of a devolved government........................................................................................24
1.8.6 Devolution versus Majimboism........................................................................................................25
1.8.7. Devolution versus federalism ......................................................................................................... 26
1.8.8. Devolution under the 2010 Constitution ..........................................................................................26
1.9 Conceptual Framework..........................................................................................................................27
1.9.1 Democracy.....................................................................................................................................27
1.9.2. Conceptualizing public participation............................................................................................... 29
1.10 Methodology ...................................................................................................................................... 32
1.11 Challenges.......................................................................................................................................... 32
Page 7
1.12 Chapter breakdown.............................................................................................................................33

CHAPTER TWO: HISTORICAL ANALYSIS OF PUBLIC PARTICIPATION AND DEMOCRACY IN KENYA SINCE
INDEPENDENCE.............................................................................................................................................. 36
2.1 Introduction ..........................................................................................................................................36
2.2 The concept of public participation and governance................................................................................ 39
2.2.1 Governance................................................................................................................................... 39
2.2.2 Public participation.........................................................................................................................40
2.3. Status of Public participation in Kenya................................................................................................... 43
2.4. Public participation during the pre-independence period........................................................................44
2.5. Regionalism at Independence ............................................................................................................... 46
2.6 Decentralization attempts and public participation from 1964 ................................................................. 51
2.6.1 The Provincial administration.......................................................................................................... 52
2.6.2 Local Governments.........................................................................................................................53
2.6.3 The District Focus for Rural Development (DFRD) Strategy................................................................ 55
2.6.4 Constituency Development Fund (CDF)............................................................................................ 58
2.7. Participation in multi-party Kenya......................................................................................................... 59
2.8. Participation in the 2005 and 2010 referenda votes ................................................................................61
2.9. Conclusion........................................................................................................................................... 62
CHAPTER THREE: THE CONCEPT OF PUBLIC PARTICIPATION & GOVERNANCE IN A DEVOLVED GOVERNMENT:
PROVISIONS OF THE 2010 CONSTITUTION........................................................................................................ 63
3.1. Introduction.........................................................................................................................................63
3.2 Concepts of public participation and governance.....................................................................................64
3.2.1 Background....................................................................................................................................64
3.2.2. Definition ......................................................................................................................................65
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3.2.3 Political participation......................................................................................................................66

3.2.4 Levels of public participation...........................................................................................................67
3.2.5. Public participation methods..........................................................................................................73
3.2.6 Effective public participation...........................................................................................................76
3.2.7 Barriers to effective public participation...........................................................................................78
3.2.8. Governance as a concept............................................................................................................... 80
3.2.9 Participation as a principle of good governance................................................................................ 81
3.3 Public participation under the Constitution of Kenya 2010 ....................................................................... 82
3.3.1. Public participation as a national value and principle of governance..................................................83
3.3.2. Public participation in the management and maintenance of the environment..................................86
3.3.3 Public participation in political processes ......................................................................................... 87
Freedom of expression............................................................................................................................89
Right to access information ..................................................................................................................... 90
3.3.4 Participation in policy and decision making...................................................................................... 90
3.4. Public participation in the devolved government....................................................................................92
3.4.1 How devolution is likely to promote participation.............................................................................93
3.5 Participation by the marginalized and minorities..................................................................................... 94
3.6 Enforcement of participation................................................................................................................. 95
3.7. Conclusion........................................................................................................................................... 96
CHAPTER FOUR: FORMULATING PROPER LEGAL AND INSTITUTIONAL FRAMEWORK FOR PUBLIC PARTICIPATION IN
THE DEVOLVED KENYA.................................................................................................................................... 97
4.1. Introduction.........................................................................................................................................97
4.2. Issues to consider in formulating the proper legislative and institutional framework for participation........ 98
4.3. Legal and institutional framework: key propositions............................................................................. 102
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4.4. Recommendations of the study ...........................................................................................................106

BIBLIOGRAPHY............................................................................................................................................. 109
Abbreviations and Acronyms

CIOCConstitution Implementation Oversight Committee
CSO.Civil Society Organization
MP..Member of Parliament
CIC...Commission for the Implementation of the Constitution
CoE...............Committee of Experts
KPPKenya People's Union
IPPG.Inter-Parties Parliamentary Group
CKRC.......Constitution of Kenya Review Commission
DFRD...District Focus for Rural Development
UN....United Nations
KHRC.......Kenya Human Rights Commission
UDHR..United Nations Declaration on Human Rights
NGO...Non-governmental organization
CDF......Constituency Development Fund
LATF....Local Authority Transfer Fund
NARC..National Rainbow Coalition
PNU..........Party of National Unity
UNDP......United Nations Development Programme
USAID.....U.S. Agency for International Development
KADU..Kenya African Democratic Union
Page 10
KANU..Kenya African National Union
CHAPTER ONE: INTRODUCTION AND RESEARCH

METHODOLOGY
1.1 Introduction
Kenya has been governed under a highly centralized system of government since 1964. This
situation was created by the abolition of the post of Prime Minister and the creation of the office
of the Presidency vide a constitutional amendment in 1964.1) It has been argued that the highly
centralized government in the Kenyatta, Moi and Kibaki regimes and the bureaucracies built
around them dealt a major blow to effective public participation in the governance process in
Kenya. Democracy suffered during the one-party state regime under Kenyatta and Moi. Further,
the immense powers bestowed upon the presidency had the effect of making such presidents to
be authoritarian and dictatorial further impacting negatively on democracy, public participation,
the rule of law and governance.
Little democratic space was restored after the re-introduction of multi party politics in 19922) but
it soon became apparent that more needed to be done. This was so because power and public
institutions had been personalized, the public who were directly affected by decisions were being
left out and ignored on important decision making process, the presidency was too powerful and
authoritarian, there was poor governance in government departments and public officials and
leaders were unaccountable for their actions. These and many other reasons informed the
advocacy and fight for a new Constitution.
The search for a new constitutional dispensation was a long and bumpy one. It was characterized
by lack of consensus on contentious issues, allegations of political sabotage, and frustrations of
1)
Constitutional Amendment Act No. 28 of November 24, 1964.
2)
Multi-partism was restored in Kenya in 1991 vide a constitutional amendment that repealed section 2A of the
Constitution. This happened due to pressure from civil society groups, donor organization and the public who
demanded democracy.
Page 11
the process at times.3) This long search for a new Constitution ended on August 4, 2010
referendum vote where over 67% of Kenyans ratified new supreme laws for Kenya.
Currently, the implementation phase is in progress. The implementation phase is poised to take
up to five years and shall be characterized by building of the relevant legislative, structural and
institutional framework in order for the new Constitution (herein referred to as the "2010
Constitution") to become fully operational. Only Articles of the 2010 Constitution that do not
require supportive legislation or creation of structures and special institutions are operational.
Two crucial implementation institutions 4) empowered to guide and drive the process of
implementation have been set up. These are the Constitution Implementation Oversight
Committee (CIOC) and Commission for the Implementation of the Constitution (CIC)5). The
Constitution Implementation Oversight Committee is composed of Members of Parliament while
the Implementation Commission is made up of experts drawn from various fields. These two
institutions shall be responsible for steering forward the implementation process with the bulk of
workload being on the Implementation Commission. The Judicial Service Commission has also
been constituted for the crucial role of judicial reforms as per the 2010 Constitution.
3)
Collins Odote (2002) notes, "President Moi had continuously expressed his disinterest, nay strong opposition to the
Review Process, even to the extent of refusing to present his views to CK RC even after a date had been set for him
to give his views. It therefore came as no surprise w hen he dissolved parliament at the same time that the N ational
Constitutional Conference w as set to commence deliberations on the draft Constitution." see Collins Odote (2002)
"Too
Near
Yet
Too
Far:
The
State
of
Constitutional
Development
in
Kenya,"
available
http://www.kituochakatiba.org/index2.php?option=com_docman&task=doc_view&gid=20&Itemid=27
at
(last
accessed on June 28, 2011)

4)
The institutions are created by the Sixth Schedule of the Constitution of Kenya 2010.
5)
The CIC is chaired by Mr Charles Nyachae, a Nairobi city lawyer.
6)
The implementation of the Constitution is to span up to a period of five years.
7)
The fifth schedule to the Constitution of Kenya 2010 lists more than 49 legislations that parliament is supposed to
enact within a period of five years.
Page 12
The 2010 Constitution introduces many and far reaching changes in Kenya. This is evidenced by
the long implementation period, 6) numerous legislations to be enacted,7) and a huge proportion of
structural and institutional changes to be undertaken in the five year implementation phase.
This study looks in to the devolved system of government as entrenched in the 2010 Constitution.
Devolution as a system of government is a major shift from the highly centralized system that
Kenya has interacted with since 1964. This study interrogates the impact that devolution will
have on the governance process in Kenya especially as regards to public participation and
democracy.
Article 174 of the 2010 Constitution spells out the objects of devolution. One such object of
devolution is that it will aim to promote democratic and accountable exercise of power. 8) Another
objective of devolution is that it aims to give powers of self-governance to the people and
enhance the participation of the people in the exercise of the powers of the State and in making
decisions affecting them. 9) This study focuses on these particular objectives of devolution and
whether they are likely to be achieved.
Interrelated questions answered by this study include: will devolution promote and enhance
public participation in the governance process of the devolved government? Will such
participation be effective and meaningful? What of democracy: How will it be affected in the
devolved government structure?
8)
Article 174 (a) Constitution of Kenya 2010.
9)
Article 174 (c) Constitution of Kenya 2010
Page 13
1.2 Background of the study

"In line with the global trend toward democratization, the issue of citizen participation in
governance has gained increasing significance in both practical politics and academic disciplines.
The provision of such citizen participation in governance is essential for enhancing public
confidence in governing institutions, formulating state policies based on people's needs, and
receiving necessary feedback on people's reactions to such policies."10)
Public participation has become a very crucial instrument in ensuring that good governance and
accountability is achieved at all levels of governance of public institutions. Public participation
stems from the basic principle that since the public is directly or indirectly affected by decisions
made by the government, public institutions and authorities, then it should be allowed to
participate in the decision making process.
In Kenya, a critical look at the history of public participation reveals institutional, legislative and
policy barriers to its effective achievement. The legislative and policy framework for public
participation in Kenya has not been comprehensive and authoritative. Public institutions have
over the years been personalized making it virtually impossible for the public to have a say in
decision making. The highly centralized government with a powerful presidency established
bureaucracies and systems that were impenetrable to those outside the system.
Kenya's Independence Constitution (also known as the Lancaster Constitution) provided for a
devolved system of government popularly referred to as the majimbo system. The system was
characterized by establishment of seven regional governments in Kenya. 11) Devolution as a
system of government in the world is often associated with the prospects of democratic selfgovernance, public participation, nation and nationhood building, equalization and efficient and
effective delivery of services.12) Therefore, hypothetically, the majimbo system at independence,
10)
M. Shamsul Haque (2003) "Citizen Participation in Governance through Representation: Issue of Gender in East
Asia," International Journal of Public A dministration Vol. 26, No. 5, pp. 569-590.
11)
Section 91 of the Independence Constitution lists the regional governments as Coast Region, Eastern Region,
Central Region, Rift Valley Region, Nyanza Region, Western Regions and North-Eastern Region.
12)
Page 14
Dan Juma "Devolution of power as constitutionalism: The constitutional debate and beyond," International
being a devolved system, provided what seemed to be an appropriate design to promote public
participation in governance. Whether the system if it had fully been implemented would have
encouraged and promoted public participation is a matter of determination.
The majimbo system was soon abolished vide a Constitutional Amendment in 1964. Other
constitutional amendments were effected between 1964 and 1969 which had the effect of
creating a highly centralized system of government. By 1969, amendments to the Constitution
had consolidated immense powers on the institution of the presidency, powers which were solely
exercised by the president. Dictatorship and authoritarianism were the natural consequence of
such immense powers bestowed upon a single person. In an authoritarian regime the public has
no say, other institutions suffer and decisions emanate from one center. Scholars have expressed
the opinion that it is the 1964 amendment making Kenya a Republic that paved way for tyranny
and dictatorial rule by President Jomo Kenyatta and later by President Moi. 13)Charles Hornsby
(1989) thus notes that both under President Kenyatta and President Moi, Kenya was increasingly
dominated by the institution of the Presidency and the authorities of the other organs of
government were seriously weakened. 14)
Prof Anyang' Nyong'o (1989) gives an insight as to how presidential authoritarianism emerged in
independent Kenya. He notes that:
"Presidential authoritarianism is born when political power is so concentrated in the office of the
president that no major decision is taken within the bureaucratic or political process without
reference to this office, or when the legitimacy of bureaucratic decisions is derived from their
claim to have the blessing or backing of the president. The presidency becomes the biggest bureau
in terms of administration and policy-making; all other organs of government gradually begin to
bend to it and politicians stand in awe of the power of the president."15)
Commission
of
Jurists
(K enya-Section)
and
K onrad
http://ssrn.com/abstract=1382821 (last accessed on July 19, 2011)
A denauer
Stiftung
available
at
Page 15
Such centralization of power had the effect of distorting public participation, democracy, and the
authority of other institutions.
Unaccountability and abuse of power by the sitting president and his close cronies and buddies
who held senior positions in government became the order of the day. The public was reduced to
being spectators in the governance process, participating albeit ineffectively during elections and
barazas. 16) It is during such times that many historical injustices were committed to the Kenyan
people. For example, an injustice like unequal distribution of resources leading to
underdevelopment of certain regions is blamed on the highly centralized system of government.
Distribution of resources, planning of development, implementation of policies and important
decisions were made by the central government with the president almost having veto power. 17)
Therefore, bulks of the resources were directed to the president's home turf or "politically
correct"18) regions.
The Kenyatta and Moi regimes made various attempts to decentralize the Kenyan government.
Most of these attempts failed and ended up strengthening centralization. Measures to decentralize
and encourage public participation included establishment of Local Authorities, implementation
of policies like the District Focus for Rural Development, among others. The policy and
legislative blueprints for these programs still maintained central authority for key decisions.
13)
See Ben Sihanya (2010) "Reconstructing the Kenyan Constitution and State, 1963-2009: Lessons from German
and American Constitutionalism," Law Society of Kenya (LSK) Journal, Nairobi.

14)
See Charles Hornsby (1989) "The Social Structure of the National Assembly in Kenya, 1963-83," in The Journal
of Modern A frican Studies, Vol. 27, No. 2, at p. 275.

15)
P. Anyang' Nyong'o(1989) "State and society in Kenya: The disintegration of the nationalist coalitions and the rise
of presidential authoritarianism," A frican A ffairs, London, Vol. 88 No. 351.

16)
Barazas were informal meeting convened by officials of the provincial administration at the lower level especially
the chief, sub-chief and village elder. These sessions were mainly used to communicate government policies to the
people rather than the people participating in decisions making.
17)
Relevant ministers who were presidential appointees made important decisions regarding distribution of key
resources in the country. This was as per the budgetary allocations to the ministries. But Ministers in the Kenyatta
16
and Moi regimes had to be very loyal to the president in order to continue serving. Therefore, their decisionsPage
had to
The one party system of government did not help the democratic situation of Kenya.
Participation of the public in elections was only to legitimize the government in power. Elections
manipulation ensured the public did not determine who won elections. Further, systems like
mlolongo19) were seriously defective and encouraged commission of election irregularities.
Even after the introduction of multi party politics the situation did not change much. The multi
party democracy still could not help facilitate and promote public participation in governance.
Gyimah-Boadi thus notes:
"On the whole, A frican parliamentary systems have yet to marry multi partism (which stresses the
representative elements of liberal democracy) with the grassroots participation and engagement
that all-inclusive single parties or mass movements sought to stimulate in an earlier era. The
multiparty legislatures of A frica today suffer from inadequate links to rural society and inadequate
citizen involvement in the period between general elections. But legislatures in no-party, singleparty, or "movement"-based systems suffer from a crippling lack of engagement with city
dwellers and the well-educated, including the professional classes."20)
It is for these and many other reasons that Kenyans started advocating for constitutional change.
The issues of concern included: the highly centralized system of government, excessive powers
of the presidency, continued abuse of citizens' rights, lack of public participation in governance,
unaccountability of public officers, among others. Thus the beginning of a long constitutional
making process that finally ended in August 2010.
On August 27, 2010 a new Constitution of the Republic of Kenya was promulgated by His
Excellency President Mwai Kibaki 21) at the historic Uhuru Park Grounds. This came after
Kenyans had overwhelmingly22) voted for the then Proposed Constitution of Kenya prepared by
19)
Mlolongo system entailed voters queuing behind the candidate that they supported. Voting was in the open.
20)
E. Gyimah-Boadi (1998) "The Rebirth of African Liberalism," Journal of Democracy 18-31
21)
Mwai Kibaki is the third president of the Republic of Kenya who was elected in 2002 and re-elected in the
controversial December 27, 2007 general elections.

22)
According to the final tally of the Interim Independent Electoral Commission (IIEC) 6,092,593 Kenyans voted for
Page
17
the new Constitution representing over 67% of the total valid votes cast. The document was also supported
by at
the Committee of Experts 23) (CoE) and published by the Attorney General (AG) of Kenya, then
Amos Wako. The promulgation ended the long struggle and search for a new constitutional order
for Kenya. The struggle started with calls for re-introduction of multi-partism. This was realized
in 1991 following the repealing of section 2A of the then Constitution. 24) This was followed by
calls for minimum reforms prior to the 1997 general elections. This was to ensure level playing
field for opposition candidates and the incumbent in the general elections. The calls led to the
signing of the Inter-Parties Parliamentary Group (IPPG) in 1997 between the then President Moi
and the opposition. In 2000, the Constitution of Kenya Review Commission (CKRC) was
established which was mandated with collecting views from the public and drafting a proposed
constitution for Kenya. The CKRC team collected views from across the country and then called
a National Constitutional Conference at Bomas of Kenya. President Moi, who had refused to
give his views to the CKRC team, purportedly disbanded it before the 2002 general elections. He
further frustrated the process when he dissolved parliament just before the National
Constitutional Conference kicked off. Parliamentarians were to form part of the delegates at the
conference. When president Kibaki took over power in 2003, he commissioned the CKRC to
continue with the National Constitutional Conference.
The Conference was turbulent and
characterized by lack of consensus, claims of sabotage and even at some point walk-outs 25) by a
section of delegates. Moris Odhiambo (2004) writes:
"Though the National Constitutional Conference (NCC) continued its sittings during the first
three months of 2004 at the Bomas of Kenya (what was referred to as "Bomas III" in subsequence
to two earlier sittings), prospects for Kenyans enacting a new constitution arguably became
least 25% of the votes cast in all the eight Provinces in Kenya. (Source: http://www.iiec.or.ke/archives/201008; last
accessed on November 22, 2010)
23)
The Committee of Experts was mandated by Constitution of Kenya Review Act to draft a new Constitution for
Kenya. A new Constitution was the 4th Agenda agreed by the Mediation team formed to mediate the post-election
stalemate in Kenya following the disputed 2007 General Election.
24)
The repealing was effected by the Constitution of Kenya Amendment Act. N o. 12 of 1991
25)
On 16th March, 2004 a number of MPs and ministers, led by then Justice and Constitutional Affairs minister
Kiraitu
Murungi,
engineered
walkout
from
Bomas
of
Kenya.
See
N ew s
from
http://www.newsfromafrica.org/newsfromafrica/articles/art_8160.html (last accessed on July 12, 2011)
A frica
at
Page 18
dimmer on a backdrop of political squabbling and an elusive search for consensus on major
issues."26)
Despite all the challenges, CKRC succeeded in preparing a draft Constitution, famously known
as the Bomas Draft, which appeared to enjoy support from a majority of Kenyans. The Bomas
draft was subjected to changes by the then Attorney General Amos Wako at Kilifi. The changed
draft, popularly known as the "Wako draft" or "Kilifi draft", was then rejected in the 2005
referendum. The changes by Attorney General Amos Wako to the Bomas Draft are said to have
greatly contributed to the rejection of the Proposed Constitution at the 2005 referendum. The
Constitution making process was re-initiated in 2008 after the post-election violence that
followed the disputed 2007 general elections.
This study reviews the constitution making
process especially the element of public participation in the two-decade long process.
A notable feature of the 2010 Constitution is that it introduces or rather re-introduces devolution
in Kenya. The devolved system of government entrenched in the 2010 Constitution is
characterized by creation of forty seven county government in the country. A national
government to perform such functions as stipulated will remain in place.
Therefore, Kenya is faced with a typically new system of government. The expectations of every
person are that this new system of government will work out much better than the previous and
eliminate all problems associated with the 1969 Constitution. The question is will it? Will this
new system of government promote public participation? Will it enhance democracy? Will
governance improve due to the vigilance of the governed? This and other interrelated questions
are explored in depth in this study.
1.3 Objectives of the Study

The main aim of this study is to examine the extent in which devolution in Kenya promotes and
enhances democracy and public participation. The study further examines the effect of
26)
Morris Odhiambo (2004) "Constitutionalism under A

Reformist' Regime in Kenya: One Step Forward, Two
Steps Backwards?" in Lawrence M. Mute (2004) (ed) Constitutionalism in East A frica Progress, Challenges and
Prospects in 2004 Kituo cha Katiba, Kampala & Fountain Publishers, Kampala
Page 19
devolution on governance. Devolution brings the government closer to the people. It is believed
that in a devolved system of government, the public has a more realistic chance of participating
in decision making. Public participation is important given the fact that decisions made by public
institutions and authorities directly or indirectly affect the public. With public participation and
vigilance, leaders are bound to be more accountable. Democratic space alsoincreases and
democratic and accountable exercise of power then follows. This improves governance of public
institutions, authorities and the government.
This study thus looks at how the Kenyan devolution structures would be able to achieve all these
and ultimately promote democratic and accountable exercise of power in governance. In
particular, the study analyzes the relevant institutional, legislative and policy framework that
should be put in place to ensure democratic exercise of power and public participation is
achieved.
1.4 Research Questions

The research questions of this study are as follows:
a) What are the prospects for democracy and public participation in devolved Kenya?
b) What will be the effect of devolution on governance in the devolved system of
government in Kenya?
c) How suitable is the Kenyan devolution structure designed to create a public participation
environment that will actively be involved in affairs of governance at all levels?
1.5 Justification of the study

A new Constitution has been promulgated and is in the implementation phase. The 2010
Constitution introduces a devolved system of government that Kenya interacted with vaguely at
independence. It is largely expected that this new system of government will enhance democratic
and accountable exercise of power. Citizens expect to have more access to the devolved
governments and participate more to the governance of the county.
Page 20
This study is important in informing the formulation of policies, crafting action plans, proposing
of legislations, creation of structures and building of institutions of the devolved government so
as to ensure the devolved government is more democratic, accountable and participation of the
public encouraged and promoted.
This study examines the failures of the Independence (Lancaster) Constitution as subsequently
amended regarding public participation and democracy and examines how devolution can be
used to achieve the desired results. This will be important in informing the implementation team
and officials of the county governments to make more informed decisions when it comes to
creation of requisite mechanisms and structures for public participation at the county level and
national level.
It should be remembered that the system of government to be adopted was a very contentious
issue in the constitution making process. Whereas it appeared that majority of Kenyans seemed
to be in support of devolution, disagreements arose as regarding the structure or design of
devolution to be adapted. Those who proposed the majimbo system as was at independence to be
reintroduced were met with fierce resistance by others who believed a majimbo system or a
federal system was a recipe for disunity and a catalyst for tribal conflict and violence. 27) One
remote reason why devolution was highly contentious although desired by a majority was that it
was closely connected to presidential power politics. Devolution meant that the powers of the
president would be greatly reduced. Therefore, close cronies to the president opposed a
devolution structure that they saw was directed at weakening the presidency. This study thus
analyzes all the historical perspectives, intrigues, and debates to help the policy makers come up
with the best approach in implementing the chapter on devolution. This is to ensure its
implementation is not sabotaged by those who had contrary ideas as to the structure of
devolution.
27)
See church leaders' comments on the subject. For example, John Cardinal Njue, Bishop Dr. David Gitari among
others.
Page 21
It is important that devolution does not sow seeds of negative ethnicity, cause ethnic strife, and
create inequality and regional polarization. Thus a historical consideration of the politics is
important in implementation to ensure unity is achieved and maintained.
1.6 Hypothesis
This dissertation tests the following hypotheses:
a) That devolution ensures public participation in the affairs of the government thus
ensuring improved governance and accountability.
b) That exercise of power is more democratic in a devolved system of government than a
unitary or centralized system of government.
1.7 Literature Review

This study uses the following literature in interrogating the main research questions. The listed
literatures are only but a selection of other numerous materials on the concept of devolution,
democracy and public participation.
a)
Devolution in Kenya: Prospects, Challenges and the Future28)
The book is a very relevant and useful resource to this study. It is of fairly recent publication
having been published in 2010 and thus the writers had a chance of analyzing the provisions of
the 2010 Constitution on devolution. The book looks at Kenya's devolution as entrenched in the
2010 Constitution and analyses the prospects, challenges and the future of this new system of
government in Kenya.
A contributor in the book, Annette Omolo, looks at the history of devolution and decentralization
in Kenya since independence. She assesses Kenya's efforts at devolution since independence with
particular focus on the majimbo system and the current local government system.
28)
Albert K. Mwenda (eds) (2010) Devolution in K enya: Prospects, Challenges and the Future Institute of Economic
Affairs Research Paper Series No. 24, Nairobi.
Page 22
Another contributor gives a comparative study of devolution. He seeks to draw lessons for
Kenya's devolution from countries with varying forms of devolution. He particularly focuses on
South Africa, Nigeria, India, Papua New Guinea and Bolivia.
Finally, the book looks at the issue of fiscal decentralization and tries to answer the question
whether such decentralization fosters or retards national development in Kenya. The contributor
in this chapter examines the policy, constitutional and legal framework providing for
decentralized funds, including local capacity to handle the decentralized funds.
This study greatly benefits from the critical analysis provided in the book. The study particularly
benefits from the historical analysis, the comparative approach to the question and an analysis of
fiscal decentralization.
b)
Search for an Appropriate Decentralization Design in Kenya: Historical and

Comparative Perspective by Walter Oyugi29) :
Walter Oyugi in the Search for an Appropriate Decentralization Design in Kenya: Historical and
Comparative Perspective analyses devolution as was proposed by the "Bomas Draft 30)." Although
his chapter focuses on the Bomas Draft, it is relevant and authoritative. This study benefits from
Oyugi's historical analysis of decentralization to provide a clearer perspective on the history
behind the entrenchment of devolution in the 2010 Constitution.
Further, the new Constitution borrows heavily from the Bomas Draft. It should be recalled that
the Bomas process was a people driven process and thus the draft appeared to be acceptable to
Kenyans and the changes that were made to it by the Attorney General Amos Wako in Kilifi are
said to have contributed to the draft's rejection in the November 21, 2005 referendum vote.
29)
Walter Oyugi (2005) "The Search for an Appropriate Decentralization Design in Kenya: Historical and
Comparative Perspective," in Kithure Kindiki's & Osogo Ambani's (eds) The A natomy of Bomas: Selected analyses
of the 2004 Draft Constitution of K enya Claripress Limited, Nairobi.
30)
The Bomas Draft was the Draft Constitution that had been prepared by the Yash Pal Ghai led Constitution of
Page 23
Kenya Review Commission (CKRC) and discussed at the National Constitutional Conference at Bomas of Kenya.
Walter Oyugi's discussion on the independence Constitution or majimbo Constitution is in depth

and analytical and will be very helpful to this study. He analyzes the reasons why the majimbo
system failed at independence and blames the Kenyatta regime of prematurely killing the
majimbo system in order to consolidate powers to the president. He wonders whether the system
would have been desirable for Kenya had it been allowed to take shape.
On current devolution, Walter Oyugi is of the strong opinion that proper devolution is discernible
only where the devolved units have legislative power, financial independence and control of
human resources. He terms the Bomas Draft as nothing short of a reinforced local government
system. His study aids this dissertation in providing the background politics that have been
associated with the search of decentralization design and thus understand how the current one
was arrived at.
c)
Devolution: Reconstructing the Kenyan State by Yash Pal Ghai 31):
Yash Ghai in "Devolution: Restructuring the Kenyan State," seeks to dispel the falsehood that
was being circulated regarding majimboism and devolution during the 2007 general elections
campaigns. Prof. Ghai's lecture is candid in that he raises issues with those he perceive as
peddling lies especially a fraction of church leaders, politicians and even a few scholars.32)
Further, it came at the height of the 2007 general elections campaigns.
Prof. Ghai, who was the chair of the Constitution of Kenya Review Commission (CKRC),
believes that the Bomas Draft had struck a reasonable balance between a federal and a purely
local government system and that it was the best mode of devolution that should have been
adopted by Kenya.
His idea of devolution is that it should start from the village or grassroots level. This he says
would increase participation of citizens in governance and their involvement in decision making.
31)
Yash Ghai (2007) "Devolution: Restructuring the Kenyan State," Lecture at the African Research and Resource
Forum (ARRF) at the Kenya International Conference Center (KICC) Nairobi, 23 November 2007
32)
He particularly singles out Prof. Makau Mutua, John Cardinal Njue, and Bishop David Gitari
Page 24
Prof. Ghai's article also brings out an insightful analysis of Devolution and majimboism.
Although his point of reference was the Bomas draft, it is still very helpful and informative.
d) The Parliamentary Human Rights: Handbook on Devolution & Fiscal
Decentralization:
The Parliamentary Human Rights: Handbook on Devolution & Fiscal Decentralization33)is also
important in this study. Part One by Victor Odhiambo is entitled Legal Framework for
Devolution. The author looks at many interrelated aspects of devolution. He defines devolution,
looks at it as a limb of decentralization, analyzes its link to democracy and good governance,
looks at its relationship to elections and representation, points out its relationship to economic,
social and cultural rights and then goes further to give a brief analysis of devolution in Africa. Of
great importance to this study is the author's analysis on the link between devolution and
democracy. The author argues that devolution or decentralization provides a structured
arrangement for democratic government to be planned and executed at the community level. He
is also of the opinion that devolution enhances the concept of participatory governance.
Although, the publication is a handbook, the author's analysis on devolution is current and up to
date. That the analysis of devolution in the handbook is on the Constitution of Kenya 2010
makes it more authoritative and useful when it comes to this study. The other literatures on
devolution discuss the topic in different contexts, as practiced in different jurisdictions, or
provide hypothetical discussions of possible scenarios, but the handbook analyses what is
contained in the Constitution of Kenya 2010 regarding devolution.
1.8 Theoretical Framework

1.8.1 The Concept and theory of Devolution
This study is premised on the basis that devolution of government is an appropriate ingredient for
citizen participation in governance.
33)
Parliamentary Human Rights: Handbook on Devolution & Fiscal Decentralization Kenya section of the
International Commission of Jurists (ICJ Kenya), 2010.
Page 25
Devolution as a concept and theory has been subjected to various definitions by different
scholars. The variation in definitions can be attributed to the existence of different natures or
kinds or systems of devolution. Most devolved governments are structured differently hence
differing descriptions attributed to them. Sometimes the term devolution is used interchangeably
with decentralization although the terms are not per se synonymous. In order for one to come to a
proper definition of devolution, it is imperative that one understands the term decentralization.
1.8.2 Defining decentralization

Decentralization is the transfer of powers from the central government to lower levels in a
political, administrative and territorial hierarchy.34) As such, in a decentralized system of
government power is transferred from the center usually the central or national government to the
regions or sub-national governments. The way in which such power is transferred differs. In one
form of decentralization power is transferred completely such that the regional governments
acquire power, in other forms of decentralization power is merely delegated with the central
government retaining control.
Thus, Dele Olowu (2001) states that decentralization takes many forms e.g. the delegation of
responsibility and authority to field units of the same department or level of government referred
to as deconcentration or the devolution of authority to locally constituted units of government or
special-purpose authorities.35)
1.8.3 Dime nsions of decentralization

There are three fundamental dimensions of devolution namely administrative, political and fiscal
decentralization.
34)
See Elizabeth Linda Yuliani (2004) "Decentralization, Deconcentration and Devolution: what do they
mean?"Compilation of definitions used in papers presented at the Interlaken Workshop on Decentralization, 27-30
April 2004, Interlaken, Switzerland
35)
See Dele Olowu (2001) "Decentralization Policies and Practices under Structural Adjustment and
Democratization in Africa," Democracy, Governance and Human Rights Programme Paper Number 4 July 2001;
United Nations Research Institute for Social Development.
Page 26
a) Administrative decentralization is the transfer of responsibility for the planning, financing

and management of certain functions from the central government and its agencies to
field units of government agencies, subordinate units or levels of government, semiautonomous public authorities or corporations or regional or functional authorities. 36)
b) Political decentralization entails a movement away from a monocentric to polycentric
structure of political power and takes two forms, horizontal, where institutions that
promote separation of powers and accountability of the executive for its actions such as
the legislature and the courts are strengthened and vertical decentralization involving
assigning powers to local government structures. The main objective of political
decentralization is to promote greater citizen participation and higher levels of
accountability to citizens.37)
c) Fiscal decentralization is the transfer of financial resources from the central government
to autonomous local agencies. This is done through the assignment of tax powers to
facilitate decentralized agencies implement their responsibilities. 38)
Generally, decentralization is of four types: devolution, delegation, delocalization and
deconcentration. Therefore, use of decentralization and devolution interchangeably as if they
were one and the same might be misleading.
1.8.4 Forms of decentralization

a) Deconcentration
Deconcentration refers to the process of administrative decentralization whereby the central
government designs a structure that enables its field agents and offices to work in close
36)
Oloo A (2006) Devolution and Democratic Governance: Options for Kenya. Nairobi IPAR.
37)
Ibid.
38)
Ibid.
39)
See John-Mary Kauzya (2005) "Decentralization: Prospects for Peace, Democracy and Development," Discussion
Pageof27
Paper for Division for Public Administration and Development Management United Nations Department
proximity to the local people. 39) The District Focus for Rural Development (DFRD) is a good
example of deconcentration. 40)
b) Delegation
Delegation on the other hand is the transfer of responsibilities from central government to semiautonomous bodies that are directly accountable to the central government.41) Examples in Kenya
include the local authorities, parastatals etc. 42)
c) Delocalization
Delocalization is defined as the spatial distribution of central government socio-economic
development facilities and activities such as schools, hospitals, etc. in peripheral regions. 43)
d) Devolution
Devolution is a form of decentralization. It is simply defined as the process of transferring
decision-making and implementation powers, functions, responsibilities and resources to legally
constituted, and popularly elected local governments.44) This is the popular meaning of the term.
Other definitions are as discussed below.
Political scientists define devolution as a process wherein a higher body confers powers upon a
lower body, but retains the right to retract the conferred powers. 45)
Prof. John W. Forje (2006) defines devolution or decentralization of power as to entails the
transfer of authority or responsibility for decision making from central to peripheral units within
an institution or organization. He describes it as a mechanism meant to boost participation of
Economic and Social Affairs.
40)
Supra note 28
41)
Ibid.
42)
Ibid.
43)
Ibid.
44)
Ibid.
45)
William D. Leach (2004) "Is Devolution Democratic?" Center for Collaborative Policy, California State
University, Sacramento.
Page 28
recipients of public services. Prof Forje (2006) does not see the need to distinguish
decentralization from devolution but rather uses them to mean the same thing. 46)
Prof. Yash Pal Ghai (2007) on the other hand sees devolution as a way to disperse state powers
throughout the country. He sees a devolved system to the village level or grassroots as the best
form of devolution.47)
Walter Oyugi (2005) describes devolution as to entail the transfer of power to elected subnational political entities.48)
Dele Olowu (2001) states that it is through devolution that the central government confers selfgoverning capacities on local communities.49) Critical attributes of local self-government include
locality, representativeness, governmental character or responsibilities and institutional
autonomy.
Other scholars define devolution with an intention of distinguishing it from federalism. For
example, William Leach (2004)50) defines devolution as to mean a formal or de facto transfer of
authority or influence from higher levels of government to lower levels or from the public sector
to the private sector. Thus, in this way devolution is distinct from federalism, which describes a
political system having a constitution that assigns different sets of powers to federal and state
governments.
Devolution as contextualized to Kenya's state of affairs has been understood as an agenda to
redesign government where power and resources are shared equitably; often confusingly referred
to as Majimbo or federalism.51)
46)
John W. Forje (2006) "Rethinking Decentralization and Devolution of Power within the African Context:
Challenges and Opportunities," paper presented to African Association for Public Administration and Management
(AAPAM) 28TH AAPAM Annual Roundtable Conference, Arusha, Tanzania 4 th - 8th December 2006.
47)
Supra note 31.
48)
Supra note 29.
49)
50)
Supra note 35.

Supra note 45.
Page 29
1.8.5 Characte ristics of a devolved government

Dr Adams Oloo (2006)52) gives the following as the core characteristics of a devolved
government:
First, in a devolved government, the local units should have autonomy and independence from
the centre. This includes political autonomy, economical autonomy and functional autonomy.
Second, the units ought to have clear and legally recognized geographical boundaries over which
to exercise authority and perform public functions.
Third, the units should be accorded corporate status and the power to raise sufficient resources to
carry out their functions. Economic independence is a very important aspect of devolution.
Without resources, such a political unit cannot survive and therefore the devolved government
should have ways to raise sufficient resources to carry out its functions.
Lastly, the local governments should be perceived by the people as belonging to them.
1.8.6 Devolution versus Majimboism

The devolution debate in Kenya during the constitution making debate was always punctuated
with talks of majimboism. Majimboism is a feared concept in Kenya. Most politicians, church
leaders, activists and even some scholars have continually associated majimboism with
balkanization, ethnicity and disunity. People mistook the term devolution to mean majimboism
forgetting that devolution could be structured and designed in many different ways.
Majimboism is a form of decentralization or regionalism that was entrenched in the Kenyan
Independence Constitution. Debates revolving around majimboism during the constitution
making process (1990-2011) shaped the way the Kenyan devolution is structured in the 2010
Constitution.
51)
Caleb Opon (2007) "Towards an Integrated Decentralization Policy in Kenya," Study to review the policy
framework for Decentralization in Kenya; ActionAid International Kenya (AAIK) consultative meeting on
Decentralization Policy.
52)
Supra note 36.
Page 30
Majimbo system has been defined as a form of regionalism where the government is structured to
permit the development of indigenous institutions and culture within different regions of the
same unitary state. It is said to involve delegation of political and legislative power to semiautonomous, regional or sub-national entities. Legal, political and fiscal powers are also
devolved to the subordinate entity yet at the same time the center maintains control over how
these powers are used.53)
The majimbo Constitution was the product of the outgoing colonial authorities who believed that
such a Constitution would address some of the teething problems that would confront the
emergent independent state e.g. the land question, the future of immigrant communities and their
vested interest.54) Also, some observers state that it was the push by the minorities who feared
dominance by the majorities that gave birth to the majimbo Constitution. All in all, the
independence government viewed the majimbo Constitution as an imposed Constitution and
worked extremely hard to do away with it within the shortest time possible. The "death" of the
majimbo Constitution came barely a year after independence.
Both majimbo and devolution as entrenched in the 2010 Constitution decentralize power and
resources yet majimbo is still unacceptable to the Kenyan society at the present moment. This
study reviews the history of the majimbo system and brings to an understanding why it is feared.
A comparison of the majimbo structure and devolution structure under the 2010 Constitution is
important to understand why the current devolution is acceptable and to analyze what should be
done to ensure that success is achieved in implementation.
1.8.7. Devolution versus federalism

Federalism refers to a principle of government that defines the relationship between the central
government at the national level and its constituent units at the regional, state, or local levels.
Under this principle of government, power and authority is allocated between the national and
53)
Ibid
54)
Supra note 29.
Page 31
local governmental units, such that each unit is delegated a sphere of power and authority only it
can exercise, while other powers must be shared.
The term federalism is derived from the Latin root foedus, which means "formal agreement or
covenant." It includes the interrelationships between the states as well as between the states and
the federal government. The main distinction between devolution and federalism is that
devolution can be done away with. Federalism is a permanent arrangement that altering is nearly
impossible.
1.8.8. Devolution unde r the 2010 Constitution

Devolution as structured under the 2010 Constitution was a delicate balance of different ideas
proposed by Kenyans. There were those who were in support of a devolution similar to the
Majimbo Constitution, others wanted only devolution of resources or what came to be famously
known as ugatuzi 55), while others supported complete or total devolution of political power
characterized by stripping the president of the enormous powers he had and bestowing it on
regional leaders. The Committee of Experts (CoE) had to delicately balance all this in coming up
with a structure acceptable to all. The Committee worked on the structure proposed at Bomas of
Kenya and as contained in the Bomas draft.
The government of Kenya is to have two levels: the national level and county level. Article 6 (1)
of the 2010 Constitution states that the territory of Kenya is to divided into the counties as
specified in the First Schedule. The first schedule lists a total of forty seven (47) counties.
Subsection 2 of article 6 states that 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.
This study focuses on how the structures and institutions operating in the county government
ensure that public participation and democracy is achieved.
55)
Ugatuzi was a term coined during the 2007 general elections campaigns to refer to decentralization of resources to
regions of the country.
Page 32
1.9 Conceptual Framework

The keys concepts under study in this research are democracy and public participation. This
section briefly describes these two fundamental concepts.
1.9.1 Democracy
Among the 193 countries worldwide that are recognized by the United Nations (UN), 123 are
said to be democratic.56) This might be taken to mean that more than half of those States have set
up a form of government that is viewed to be democratic by other states or regimes. 57) Does this
then mean that 70 countries recognized by the United Nations are undemocratic? It should be
noted that a leader of any of these 70 countries would strongly claim that he/she is leading a
democratic government. Then what is democracy?
George Orwell (1957) states that in the case of a word like democracy, not only is there no
agreed definition but the attempt to make one is resisted from all sides the defenders of any kind of
regime (will) claim that it is democracy58)
Afrifa Gitonga (1987)59) also believes that defining democracy is a hard task. He states that this is
due to the various meanings given to it by regimes around the world. Every regime will try as
much as possible to label itself democratic and non-whatsoever would admit that it is
undemocratic. Thus, understanding democracy as a term and concept largely depends on a
regime or government one believes in or is in. But then this would mean democracy has no
generally acceptable definition and that all regimes are democratic. Allowing all definitions to
be right would give rise to a false assumption that as long as a regime claims it is democratic then
it is democratic.
56)
Paula Becker and Dr. Jean-Aim A. Raveloson (2008) "What is Democracy," Friedrich-Ebert-Stiftung (FES) with
the collaboration of Friedel Daiber (University of Trier)

57)
Ibid
58)
George Orwell (1957) Selected essays Baltimore p. 149
59)
Gitonga Afrifa (1987), "The Meaning and Foundations of Democracy" in Oyugi W.O. & Gitonga A. (1987)
Democratic Theory and Practice in A frica Heinemann Kenya.
Page 33
The term "democracy" is literally translated from Greek to mean Government of the People or
Government of the Majority. Thus democracy is generally understood to simply mean "rule by
the people."60) This understanding was further expanded by Abraham Lincoln who defined
democracy as "the rule of the people, by the people and for the people." This is the generally
acceptable definition of democracy and a regime that satisfies this definition is labeled
democratic.
The following have been identified as being elements of states that are organized under
democratic principles: fundamental freedom and fundamental rights, elections, rule of law,
separation of powers, parliament, democratic pluralism and freedom of the media. 61)
Devolution and democracy

Devolution is very useful for the consolidation of democratic structures. As earlier stated,
citizens become more accessible to the government and their level of participation in governance
increases. It also makes the access of the inhabitants to political decisions much easier. Further, it
increases the inhabitants' motivation to get involved in politics; and this political commitment is
probably greater than in countries with centralized organization.
Nevertheless, devolution does not mean that the central government is not important. It is exactly
the opposite that is true as the government must show enough political will and commitment to
be able to establish such a change. Devolution is not only an administration restructuring, but
also a political process of transformation. Apart from the administration, these changes affect all
the levels and all the sectors of society.
This is based on the premise that devolved governance provides a structural arrangement and a
level playing field for stakeholders and players to promote peace, democracy, and development.
60)
Ibid
61)
Supra note 56.
Page 34
Many countries are promoting devolution in governance as a measure for democratization,

people empowerment and poverty reduction.62)
1.9.2. Conceptualizing public participation

In a recently published report, the Kenya Human Rights Commission (KHRC) notes that many
countries that are relatively more advanced and successful in the decentralization process than
Kenya, for instance Britain and China have succeeded in reducing regional inequalities through
better coordination, popular public participation and accountable and responsive governance. 63)
Public participation is thus viewed as an important element for development, improved
governance, and accountability. Further, public participation is said to be a key parameter in
enhancing public confidence in governing institutions, formulating state policies based on
people's needs, and receiving necessary feedback on people's reactions to such policies.64)
1.1.1.1 Defining public participation
Public participation is a concept that is widely recognized by both international and regional
legal instruments. For example, Article 21 of the United Nations Declaration on Human Rights
(UDHR) recognizes the concept of public participation as
democratic participation,' Article 25
of the International Covenant on Civil and Political rights provides for every citizen's rights to
take part in the conduct of public affairs and Article 13 (1) of the African Charter also provides
for public participation. 65)
62)
Supra note 39.
63)
Harmonization of Decentralized Development In K enya: Tow ards A lignment, Citizen Engagement A nd Enhanced
A ccountability A Collaborative Joint Research report by the Kenya Human Rights Commission (KHRC) and Social
and Public Accountability Network (SPAN) December 2010.
64)
John Gaventa and Camilo Valderrama (1999) Participation, Citizenship and Local Governance Background note
prepared for workshop on strengthening participation in local governance Institute of Development Studies, June 21
-24, 1999.
65)
V Hart (2003) Democratic Constitution Making available at http://www.usip.org
Page 35
Public Participation became fashionable following the failure of the top-down development
policies of the 1960s and 1970s. All over a sudden it was argued, in the 1980's, that development
could not be realized unless citizens participated in the politics of their countries. Nongovernmental organizations (NGOs) and donors woke up to the fact that their projects often
failed because people were either not consulted or did not participate in the formulation and
implementation of those projects.66)
The World Bank Learning Group on Participation defines participation as a process through
which stakeholders influence and share control over development initiatives and the decisions
and resources which affect them. 67)
From this perspective, participation could be seen in the level of consultation or decision making
in all phases of a project cycle, from needs assessment, to appraisal, to implementation, to
monitoring and evaluation. While these participation projects could be funded by the state,
participation within them was seen not as related to broader issues of politics or governance, but
as a way of encouraging action outside the public sphere. Moreover, the focus was often on
direct participation of primary stakeholders, rather than indirect participation through elected
representatives. 68)
1.1.1.1 Role of public participation
The role of public participation in economic and human development is enshrined in Article 7 of
the 1990 African Charter for Popular Participation in Development and Transformation. The
Article states:
"W e affirm that nations cannot be built without the popular support and full participation of the
people, nor can the economic crisis be resolved and the human and economic conditions
66)
Nyangabyaki Bazaara (2002) Legal and Policy Framew ork for Citizen Participation in East A frica: A
Comparative A nalysis Regional Report Centre for Basic Research 14th October 2002
67)
World Bank (1995), World Bank Participation Sourcebook, Environment Department Papers Participation Series
Washington D.C. World Bank.

68)
Supra note 64.
Page 36
improved without the full and effective contribution, creativity and popular enthusiasm of the vast
majority of the people. A fter all, it is to the people that the very benefits of development should
and must accrue. W e are convinced that neither can A frica's perpetual economic crisis be
overcome, nor can a bright future for A frica and its people see the light of day unless the
structures, pattern and political contest of the process of socio-economic development are
appropriately altered." 69)
1.1.1.1 Modes of public participation

There are various forms or modes of public participation. These include: community-level
involvement in decision-making, opportunity to vote for or against major policy mandates, use of
informal means like the media to influence state policies, and direct representation of citizens in
politics and administration.
Community-level participation basically occurs at the lower level of state power. In Kenya a
good example is the village barazas.
Participation through electoral vote is an indirect way of participation whereby the people elect
representatives to represent them at the decision making level. Whereas these elected persons
might represent the wishes of the people, they might also make decisions for their own personal
benefit.
Expression of individual opinions through the media is also a way of participation. The only
concern is whether such participation is effective. Can such participation influence decision
making? Further participation through the media is quite fragmented.
Authentic public participation that is, participation that works for all parties and stimulates
interest and investment in both administrators and citizens, requires re-thinking the underlying
roles of, and relationships between administrators and citizens.70) This study reviews public
69)
Article 7 of the 1990 African Charter for Popular Participation in Development and Transformation
70)
Cheryl Simrell King, Kathryn M. Feltey, Bridget O'Neill Susel (1998) "The Question of Participation: Toward
Authentic Public Participation in Public Administration," Public A dministration Review, Vol. 58, Page
No. 37
4
participation under the new constitution to determine whether it will be adequate, effective and
efficient and also reviews structures that should be established to ensure that participation is
promoted.
1.10 Methodology
This study mainly employs desk research methodology whereby it analyzes the available
secondary data as found in books, articles, journals, news reports and on the internet.
1.11 Challenges
The major challenge in this study is access to materials that have examined devolution as
entrenched in the 2010 Constitution. Materials that I relied on generally analyzed various aspects
of decentralization. The Kenyan devolution is peculiar in nature and structured in a delicate
balance. Therefore, to understand this kind of devolution, one needs to interrogate literature on
devolution of the Kenyan case.
1.12 Chapter breakdown

This study is broken down in to four chapters.
Chapter One: Introduction and Research Methodology
Chapter one is the Introduction and Research Methodology of the study. The chapter introduces
the study in the form of the background to the problem, research questions, hypotheses, objective,
literature review, theoretical framework and methodology.
Chapter Two: Historical analysis of public participation and democracy in Kenya since
independence
This chapter analyzes the history of public participation in Kenya since independence.
The chapter looks into the Lancaster (Independence) Constitution and whether it provided for
public participation. In reviewing the Lancaster (Independence) Constitution, the chapter
http://www.jstor.org/stable/977561
analyzes regionalism or majimboism
as was entrenched in the Independence Constitution. The

Page 38
study reviews public participation in the period between 1963 and 1964 especially involving
events that culminated to the abolition of the majimbo system.
Various attempts by Kenya to decentralize are also reviewed and analyzed in light of whether the
various attempts promoted democracy and public participation in Kenya. The chapter thus looks
into various structures like regional governments at independence, the provincial administration,
the local government and whether public participation existed or was encouraged under these
structures. The chapter further reviews various policy instruments like Sessional Paper No. 10 of
1965 on African Socialism and its Application to Planning in Kenya,71) the District Focus for
Rural Development, Development Plans of the 70's, 80's and 90's, Constituency Development
Fund (CDF), Local Authority Transfer Fund (LATF) etc.
The chapter concludes by reviewing public participation in the constitution making process. This
section reviews public participation in multi-party Kenya; participation under the Constitution of
Kenya Review Commission (CKRC) and Bomas Process; participation in the 2005 referendum;
and finally, participation under the Committee of Experts (CoE) process, and the August 2010
referendum.
Chapter Three: The concept of public participation & governance in a devolved government:
provisions of the 2010 constitution
This chapter discusses the specific provisions of the 2010 Constitution on public participation
and interrogates how such provisions will promote good governance. The interrelationship
between devolution, public participations and governance are looked into in light with the
provisions of the 2010 constitution.
The chapter discusses various aspects of participation. For example, citizen participation in
decision making, resource allocation and governance; and group participation whereby groups
71)
Government of Kenya, A frican Socialism and Its A pplication to Planning in K enya, Sessional Paper no. 10 of
1963/65 (Nairobi: Government Printer, 1965)
Page 39
such as the marginalized, the minorities, and gender based groups among others participate in
governance.
Public participation as a concept is dealt with in depth in this chapter.
Chapter Four: Formulating proper legal and institutional framework for public participation in
the devolved Kenya
This chapter gives the proposals and recommendations as to the appropriate legislative and
institutional framework that should be adopted to promote public participation and democracy in
devolved Kenya.
Specifically, the chapter proposes factors to consider in formulating legislations and how
institutions should be built and structures established to ensure that participation and democracy
is achieved.
Page 40
CHAPTER TWO: HISTORICAL ANALYSIS OF PUBLIC

PARTICIPATION AND DEMOCRACY IN KENYA SINCE
INDEPENDENCE
2.1 Introduction
Devolution as a system of government has been adopted in Kenya by the Constitution 2010.72)
Once the 2010 Constitution is fully implemented, Kenya will have a two-tier government
comprising of the national government and the county governments.
Two important reasons are advanced as to why devolution as a system of government is a
preferred model. First, devolution is viewed as a means of enacting self-governance, and an
efficient and effective system of government responsive to the needs of the local communities.
Second, devolution is considered a means of democratizing governance and accommodating
diverse ethnic, linguistic and religious identities. This leads to the prospect of self-rule, public
participation, accountability, good governance and equitable development.73)
In Kenya, the calls for a new constitution were initiated due to the perceived failure of the
existing highly centralized system of government to promote democratic governance,
accountability and citizen participation in governance. In demanding a new constitution, activists
in essence wanted new laws that would put in place a new system of government in Kenya most
preferably a decentralized system of government. Yash Ghai (2007) notes that in Bomas the
demand for devolution was for positive reasons which included: as a way of strengthening
national unity through the device of power sharing; creating more centres of decision making and
72)
Chapter 11 of the 2010 Constitution is on devolved governments. It creates autonomous county governments that
will exist on the basis of mutual co-operation with the central government.
73)
Commission
of
Jurists
(K enya-Section)
and
K onrad
http://ssrn.com/abstract=1382821 (last accessed on July 19, 2011)
A denauer
Stiftung
available
at
Page 41
development (arresting the deepening poverty in many parts of the country and the migration to
urban centres); promoting local cultures and institutions, and above all, increasing people's
participation in public affairs and ensuring greater responsiveness and accountability to local
communities.74)
Eventually a new Constitution was ratified75) on August 4, 2010 by Kenyans and subsequently
promulgated on August 27, 2010 by His Excellency (H.E.) the President of the Republic of
Kenya, Mwai Kibaki.76) A notable feature of this new Constitution is that it introduces a devolved
system of government for Kenya. This is a system that Kenyans desired throughout the
Constitution making process although there were disagreements over its structure and design.
Devolution as entrenched in the 2010 Constitution is expected to achieve the following key
objectives: to promote democratic and accountable exercise of power; to foster national unity by
recognizing diversity; to give powers of self-governance to the people and enhance the
participation of the people in the exercise of the powers of the State and in making decisions
affecting them; to recognize the right of communities to manage their own affairs and to further
their development; to protect and promote the interests and rights of minorities and marginalized
communities; to promote social and economic development and the provision of proximate,
easily accessible services throughout Kenya; to ensure equitable sharing of national and local
resources throughout Kenya; to facilitate the decentralization of State organs, their functions and
services, from the capital of Kenya; and to enhance checks and balances and the separation of
powers. 77)
74)
Yash Ghai (2007) "Devolution: Restructuring the K enyan State," Lecture at the African Research and Resource
Forum (ARRF) at the Kenya International Conference Center (KICC) Nairobi, 23 November 2007.
75)
Over 67% of voters representing 6,092,59 of Kenyans voted for the new Constitution. The document was also
supported
by at
least
25%
of the
votes cast
in
all
the eight
Provinces in Kenya
(Source:
http://www.iiec.or.ke/archives/201008; last accessed on April 20, 2011).

76)
President Mwai Kibaki is the third president of the republic of Kenya having been elected in the December 2002
general elections on a National Rainbow Coalition (NARC) ticket and re-elected in the controversial December 27,
2007 general elections on a Party of National Unity (PNU) ticket.
Page 42
These objectives, among others, are the core reasons why Kenyans were in support of a devolved
system of government and thus advocated strongly for the system to be included in the new
constitutional dispensation.
Of particular concern to this study are the following two objectives: that devolution will promote
democratic and accountable exercise of power 78) and that it will give powers of self-governance
to the people and enhance the participation of the people in the exercise of the powers of the
State and in making decisions affecting them.79) This study seeks to answer the following
question; will devolution achieve these two objectives?
This chapter reviews the history of public participation and democracy in Kenya since
independence. The chapter briefly reviews democracy and public participation in the preindependent Kenya i.e. the period immediately before independence.
The chapter then looks at the decentralization as provided for in the Independence Constitution.
The main focus is on majimboism and the Local Authorities and how the public participated
under these systems.
The chapter then reviews various attempts to decentralize governance and resources in Kenya. In
this section, the chapter analyses the provincial administration and the local governments.
Further, policies such as the District Focus for Rural Development Strategy (DFRD) and the
Constituency Development Fund (CDF) as measures to decentralize resources and encourage
public participation are reviewed.
The chapter concludes by briefly analyzing public participation in the constitution making
process in Kenya. This shall include participation in the ufungamano initiative, the Constitution
of Kenya Review Commission (CKRC) process and the Committee of Experts (CoE) process.
77)
Article 174 of the Constitution of Kenya 2010.
78)
Article 174 (a) of the Constitution of Kenya 2010.
79)
Article 174 (c) of the Constitution of Kenya 2010.
Page 43
2.2 The concept of public participation and governance

"Underlying the litany of A frica's development problems is a crisis of governanceby governance
is meant the exercise of political power to manage a nation's affairs. Because countervailing
power has been lacking, state officials in many countries have served their own interests without
fear of being called to accountthe leadership assumes broad discretionary authority and loses its
legitimacy. Information is controlled and voluntary associations are co-opted or disbanded."80)
2.2.1 Governance
Governance has been defined as the exercise of political authority and the use of institutional
resources to manage society's problems and affairs.81) It is also defined as the use of institutions
or structures of authority and even collaboration to allocate resources and coordinate or control
activity in society or the economy.82)
Governance plays a crucial role in the development of a nation. The World Bank notes that good
governance pays a very large development dividend and that an improvement in governance of
one standard deviation can triple a nation's per capita income in the long run. Higher income also
correlates with better governance, but the causal relationship is mostly from governance to
income. 83)
The World Bank gives three aggregate indicators that capture the political, economic, and
institutional dimensions of governance. First, voice and accountability which connotes the extent
to which a country's citizens are able to participate in selecting their government, as well as
freedom of expression, freedom of association, and a free media. Second, political stability and
absence of violence which include perceptions of the likelihood that the government will be
destabilized or overthrown by unconstitutional or violent means, including domestic violence
80)
World Bank Report (2006) "A Decade of Measuring the Quality of Governance: Governance Matters 2006
Worldw ide Governance Indicators."

81)
Ibid.
82)
Bell, Stephen (2002) "Economic Governance and Institutional Dynamics," Oxford University Press, Melbourne,
Australia.
83)
Supra note 80.
Page 44
and terrorism. Third, government effectiveness, that is, the quality of public services, the quality
of the civil service and the degree of its independence from political pressures, the quality of
policy formulation and implementation, and the credibility of the government's commitment to
such policies. 84)
2.2.2 Public participation

Public participation on the other hand is defined by the W orld Bank Learning Group on
Participation as a process through which stakeholders influence and share control over
development initiatives and the decisions and resources which affect them.85) The United Nations
Development Programme (UNDP) gives requirements of what should happen to constitute
participation. UNDP requires that participants must have "constant access to decision-making
and power" for them to be said to have participated.86)
The underlying principle of public participation stems from the fact that the modern state is an
evolved state. Citizens of this modern state have two important expectations of their state. Firstly,
the state is expected to be democratic and one that upholds democratic principles. Democracy
entails the participation of the citizens in the political process of the country. Secondly, the state
is expected to be one that is responsive to the need of its subjects. This will only be achieved if
such a state allows participation of the public in decision making. This is for obvious reason; I
will respond to my needs if I am allowed to participate in decision making affecting me. 87)
The concept of 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. Thus, for
participation to be meaningful and to meet the threshold set for the concept of public
84)
Ibid.
85)
World Bank (1995) World Bank Participation Sourcebook, Environment Department Papers Participation Series,
Washington D.C.
86)
Ibid.
87)
Ibid.
Page 45
participation, it needs to be effective and not just mere ceremonial and technical involvement of
the people.
Democracy and public participation are closely interconnected concepts. Both are concepts of
participation. With democracy comes the right to vote and participate in the election of
representatives of the people. With public participation comes the right to participate in the
decision making of the government and its institutions.
Societies perceived to be democratic incorporate public participation rights into their laws. For
example, in the United States (US) the right to petition has been part of the first Amendment of
the Constitution since 1791.88)
Laws on public participation often deal with such issues like the right to know, access to
information and freedom of information.89)The right to participation may also be advanced in the
context of equality and group rights, meant to ensure equal and full participation of a designated
group in society, for example, the disabled, the youth, marginalized communities etc.90)
Access to information is a core element of participation. In a highly centralized system of
government access to information is constrained. This may be due to the following three reasons:
first, centralized systems have highly developed bureaucracies that are almost impenetrable to an
outsider; second, transmission of information in this bureaucratic system is always slow and at
times ineffective; and third, the decision makers are at a centralized place inaccessible to persons
in villages and at the grassroots.
A devolved system of government where there is devolution of the responsibility for
development planning, administration, and governance is considered essential for increasing
citizen participation. Such a system is a useful means for diversifying power centers, increasing
popular participation in local decision making, and improving service delivery, particularly to
outlying areas. 91)As analysts within the U.S. Agency for International Development (USAID)
88)
Ibid.
89)
Ibid.
Page 46
have argued:
"Increased popular participation, to be sustained and effective, requires the mobilization of local
actors and the institutionalization of their activities. Decentralization is necessary to increase the
scope of decisions, and thus incentives available to participants, as well as to build institutions to
encourage, structure, focus and stabilize such participation."
Dele Olowu (2001) contends that the primary consideration of devolution is political-popular
participation and empowerment. 92) Further, other advocates of decentralization also contend that
decentralization and widespread participation can offset the dominant influences or control over
development decision-making of local elites, who are often unsympathetic to national policies,
and insensitive to the needs of local residents, especially the poorest groups in rural areas. The
underlying assumption is that the process of decentralization facilitates greater participation of
communities in project identification, planning and implementation, which in turn increases
ownership, vigilance, accountability and the likelihood of sustainability.93)
With increased public participation governance improves. The reason being that leaders and
decision makers are constantly under the surveillance and scrutiny of the public and will thus
tend to govern in a manner that is consistent with the wishes of the public.
90)
Ibid.
91)
Ensuring an Effective Devolution of Pow er: A Comparative Case Study a Legal Memorandum by Public
International Law & Policy Group & Harvard University Law and International Development Society (2010).
92)
See Dele Olowu (2001) "Decentralization Policies and Practices under Structural Adjustment and
Democratization in Africa," Democracy, Governance and Human Rights Programme Paper Number 4 July 2001;
United Nations Research Institute for Social Development.
93)
John-Mary Kauzya (2005) "Decentralization: Prospects for Peace, Democracy and Development," Discussion
Paper for Division for Public Administration and Development Management United Nations Department of
Economic and Social Affairs.
Page 47
2.3. Status of Public participation in Kenya

The concepts of public participation and democracy suffered during the highly centralized
system of government in Kenya from1964. Elected leaders and public officials made decisions,
formulated policies, implemented programmes and utilized public resources without effectively
involving the public. The centralization of authority was also a recipe for unaccountability,
corruption, mismanagement and misappropriation of resources. Maddick (1963) notes that overconcentration of administrative authority stifles development, leads to waste and corruption,
delays action, and creates irrational and inefficient management practices, the costs of which
developing countries cannot afford. 94) This overconcentration of authority had great negative
consequences to the state of public participation in Kenya. Centralization of authority
characterized with a powerful presidency was born with abolition of regional governments in
1964.95)
Noting that the highly centralized system was undermining public participation, various attempts
were made to decentralize governance. For example, the creation of local governments, the use
of the provincial administration and the crafting of various policies and strategies like the District
Focus for Rural Development (DFRD). These attempts only ended up strengthening central grip
on the local units.
Participation in the political process has existed since independence. Since 1963, the public has
been voting in elections in order to elect their representatives. Was this kind of participation
effective? Were elections upholding democratic principles? This and interrelated questions on
participation in political processes are reviewed in this chapter.
This study now embarks on reviewing the status of public participation in Kenya since
independence.
2.4. Public participation during the pre-independence period

94)
Henry Maddick (1963) Democracy Decentralization and Development London.
95)
See Sihanya Ben (2010) "Reconstructing the K enyan Constitution and State, 1963-2009: Lessons from German
and A merican Constitutionalism," Law Society of Kenya (LSK) Journal, Nairobi.
Page 48
During the colonial period, Kenya had a centralized system of government. Executive power was
exercised by the central government headed by the governor who was directly answerable to the
Queen of England. There was no separation of powers as the executive exercised immense power
over both the legislature and the judiciary. For most of the colonial period, the Governor was the
president of both the executive and the legislative council. 96) For effective administration there
was established a powerful provincial administration. The provincial administration was the
machinery that was used by the colonial government to communicate and implement its policies
at the grass root level. It was also a machinery to fight African activists agitating for
independence.
The colonial government used force to govern Kenya and as such public participation by the
locals in making decision affecting them was nonexistent. It is not until 1944 that Kenyans were
allowed to have a representative to the Legislative Council (LEGCO).97) Throughout the colonial
period the colony of Kenya was almost wholly ruled from the centre and from outside and the
people had almost no say in the decisions that affected and shaped their lives.98)
It is only when Kenya was being prepared for Independence that minimal participation was
allowed. For example, representatives of Kenyans were allowed to participate in the drafting of
the Independence Constitution at Lancaster. But we cannot help but wonder, how effective was
such participation? Did the representatives even articulate the views of the general population?
Did the representatives have control over the process? Did they have power to determine the
outcome of the Lancaster process?
During the Lancaster conferences to draft the Independence Constitution, two ideological divides
emerged. The two factions differed over the structure or system of government that should be
adopted for independent Kenya. On one side of the ideological divide were persons who
represented minority communities and on the other side were representatives of the so-called
96)
Interim Report of the Task Force on Devolved Government: A report on the implementation of devolved
government in K enya, Wednesday, April 20, 2011.

97)
Eliud Mathu was the first African to be appointed to the Kenyan Legislative Council in 1944.
98)
Supra note 96.
Page 49
majority communities in Kenya. The minorities were represented by Kenya African Democratic
Union (KADU) while the majorities were represented by Kenya African National Union
(KANU). The minorities were against a centralized system of government arguing that in such a
system of government, the majorities will dominate them in government. KADU thus proposed a
devolved system of government characterized by creation of regional government in each region
of the country. This, they argued, would ensure that there would be effective representation and
participation of the minorities in government.
Scholars have questioned the real intention that KADU leaders had in pushing for regional
government. Were the KADU leaders really representing the wishes of the minority communities?
Was the fear of domination a fear by leaders or by the people? What was the ideology in pushing
for regionalism? What core principle were KADU leaders driven by in proposing a devolved
system of government? Scholars have stated that KADU leaders might have been pursuing
selfish interests rather than being driven by an ideology or principle in proposing that
independent Kenya adopts regionalism.99)
KANU on the other hand favoured a centralized system of government similar to how the
colonial government was structured. 100) They argued that a centralized system of government
would promote unity of all Kenyans. KANU only accepted the Independence Constitution which
entrenched a devolved system of government in order to speed up independence.101) Oginga
Odinga states:
"W e knew that this regional constitution would be short lived. So we honoured the
undertakingbut we improvised a new way of keeping a centralized control as possible, ready for
99)
See Walter Oyugi (2005) "The Search for an Appropriate Decentralization Design in Kenya: Historical and
Comparative Perspective," in Kithure Kindiki's & Osogo Ambani's (eds) The A natomy of Bomas: Selected A nalyses
of the 2004 Draft Constitution of K enya Claripress Limited, Nairobi.
100)
Musambayi Katumanga and Mary Omosa (2007) "Leadership and Governance in Kenya," in Peter Wanyande's,
Mary Omosa's and Chweya Ludeki's (eds) Governance and Transition Politics in K enya University of Nairobi Press,
Nairobi.
101)
Ibid.
Page 50
the day when a strong central authority would be established. W hen we came back, Kenyatta told
a gigantic welcoming crowd - that was silent and depressed at the start of the meeting - that when
KA DU looked at the face of the constitution, they would think that it was a cow but when they
tried to milk it then they would find it was a donkey" 102)
2.5. Regionalism at Independence

The result of the Lancaster conference was the adoption of a fairly progressive and liberal
constitution whose primary features were: an extensive bill of rights; a bi-cameral parliament;
devolved government; separation of powers between the arms of government; judicial
independence; and a multi-party political system.103) The devolved system of government adopted
by the Independence Constitution was referred to as regionalism. This system came to be
popularly referred to as Majimboism.104)
The Independence (Lancaster) Constitution created a three-tier system of government comprising
of the central government, regional governments and county governments each with distinct
powers and functions.105) Thus, the Independence Constitution created three important structures
to devolve the government. These were:
a) Seven regional governments: the country was divided in to Nairobi and seven regions
namely Coast Regions, Eastern Region, Central Region, Rift Valley Region, Nyanza
Region, Western Regions and North-Eastern Region.106) The central government was to
devolve certain tax and financial powers to these seven newly created Regional
102)
Odinga Oginga (1967) N ot Y et Uhuru, Heinemann publishers, London.
103)
Supra note 96.
104)
The Majimbo system has been defined as a form of regionalism where the government is structured to permit the
development of indigenous institutions and culture within different regions of the same unitary state. It is said to
involve delegation of political and legislative power to semi-autonomous, regional or sub-national entities. Legal,
political and fiscal powers are also devolved to the subordinate entity yet at the same time the center maintains
control over how these powers are used. See Walter Oyugi (2005) Supra note 99.
105)
Albert K. Mwenda (eds) (2010) Devolution in K enya: Prospects, Challenges and the Future Institute of
Economic Affairs Research Paper Series No. 24, Nairobi.

106)
Section 91 Independence Constitution.
Page 51
Governments. Further, the central government was to consult regional presidents in key
government appointment e.g. in appointing the Chief Justice.
b) Local authorities or county councils. These county councils were vested with the power
to control trust land.
c) Bicameral legislature with House of Representatives and a Senate.
At the national level, the executive comprised of the Governor-General and the Prime Minister.
The Governor-General was directly answerable to the Queen of England. At the regional level,
the Independence Constitution created Regional Assemblies107) which had powers to make laws.
108)
These regional assemblies could make legislation either unilaterally or in consultation with
the central government. The Regional Assemblies elected a president109) from amongst themselves
and each region had a Civil Secretary 110) (formerly the Provincial Commissioner). The Civil
Secretary was a civil servant appointed by the Public Service Commission of the central
government.
Although the Constitution provided for a decentralized system, the Kenyatta government wanted
a centralized government with a strong center.111) This was sustained through the Provincial
Administration. Officers of the provincial administration were maintained and used by the
Kenyatta government despite the Independence Constitution not making provisions for the
system. This and the provision for a civil secretary undermined the authority of the regional
presidents and defeated the spirit of devolution and regional autonomy.112)
The colonial government had established the provincial administration to facilitate direct rule and
ensure that its presence was felt up to the grass root level. The provincial administration was
107)
Section 92 of the Independence Constitution.
108)
109)
110)
111)
Supra note 102.
112)
Supra note 105.
Page 52
historically a very powerful administrative machinery of the government given the fact that it
implemented policies directly from the executive arm of the government.113)
When Jomo Kenyatta became Kenya's Prime Minister in 1963, together with other elites in the
central government, he launched a systematic plan to do away with regionalism and consolidate
power to the central government. The government advanced various arguments against
regionalism key among them that it undermined the spirit of national unity and strengthened
ethnicity. 114) This, the central government took a series of steps during the first year of
independence (1963-1964) to undermine the success of regionalism or Majimbo system.115)
First, the central government retained much closer control over the civil service at regional level
than the Constitution allowed. The Independence Constitution had bestowed upon the regional
governments the power of recruiting civil servant in their regions. The central government
ignored this and continued to recruit civil servants at the national level who were then deployed
to the regional government. These civil servants were under the direct control of the central
government through the provincial administration and the Public Service Commission.116)
Second, the provincial administration became one of KANU's most important assets for fighting
regionalism. The provincial administration amassed enormous powers during the Kenyatta
administration. This is because it directly implemented orders and policies from the executive.
The administrative became lords in their realms and areas of authority and were feared across the
board. These administrators undermined the authority of regional leaders and politicians. For
example, the provincial administration used the Public Order Act (Cap. 56), a colonial
inheritance, to deny opposition politicians licenses to hold meetings. Members of Parliament
(MPs) who opposed the Kenya African National Union (KANU) policies had difficulties
obtaining licenses.117) This had the effect of forcing such opposition leaders to join the
113)
Ibid.
114)
Ibid.
115)
Ibid.
116)
Ibid.
117)
Page 53
Obuya Bagaka (2011) "Restructuring the Provincial Administration: An Insider's View" Society for International
government.118) It is the defections from the opposition that enabled the government to garner
majority votes in parliament to push through a constitutional amendment abolishing regionalism.
Third, the government delayed full implementation of the financial provisions laid down in the
Independence Constitution. The government retained central control over regional finances
beyond the date of June 1964 as was stipulated. This undermined the financial ability and
capability of the regional government which could not survive without such financial support. 119)
Fourth, the transfer of certain services from the central governments to the regions was never
realized.120)
Finally, the government sought public support for their intended constitutional amendment to
abolish regionalism and introduce a unitary state through public rallies across the country. The
government wooed KADU members to cross the floor and support the government in the
National Assembly. 121) It is also on record that the government used the provincial administration
to frustrate opposition politicians so as to persuade them to join the government side.
Consequently, the government was able to garner a majority number of votes in parliament to
push through a constitutional amendment changing the system of government from regionalism
to a centralized one.122)
The majimbo system never took shape having been strangled at birth by the Kenyatta
government.123) A study of public participation in the period of 1963-1964 during the majimbo
era is challenging due to the fact that the majimbo system was never allowed to take shape.
Whether it would have promoted public participation had it been allowed to take shape is a
speculative approach to the question.
Development (SID) Constitution Working Paper No. 3.

118)
Supra note 99.
119)
Supra note 105.
120)
Ibid.
121)
Ibid.
122)
Supra note 99.
123)
Ibid.
Page 54
The underlying assumption is that decentralization of government promotes governance,

accountability and public participation in the governance process. Further, that public
participation is more efficient, realistic and effective in a decentralized system of government.
Therefore, by creating a decentralized system, it was hoped that public participation will be
promoted and encouraged.
Three reasons can be advanced to explain why participation was never promoted during the
majimbo era.
First, majimboism as a system of government was never allowed to take shape. The central
government that was required to facilitate the implementation of regionalism was opposed to the
idea and thus frustrated the system. With no resources, no clear framework on functioning and
lack of general central government support, the system came was abolished a year later.
Second, President Kenyatta was only interested in creating a strong center. He never sought
popular opinion in proposing key changes to the Kenyan governance structure. For example,
scholars have argued that a change in system of government in a country is of critical importance
and as such should not be done through a simple constitutional amendment. They argue that
public participation through a referendum vote in such a process is of vital importance.124) The
Kenyatta government preferred to use parliament to effect the key change on the system of
government, a parliament that was overflowing with sycophants.
Third, illiteracy and ignorance were serious problems at independence. Therefore, such a public
would have difficulty participating effectively in governance process. Further, ignorance about
their right to participate would be a barrier to them participating. The Kenyatta government
sought to involve the public in the constitutional amendment through country wide rallies
organized to drum up support for the abolition of majimboism. Information given during political
rallies is in most cases false and only aimed to achieve political agenda.
Thus, Omosa and Katumanga (2007) conclude that in the end, the process of participation that
124)
Supra note 95.
Page 55
the Independence Constitution had sought to promote was rolled back in favour of statism. 125)
2.6 Decentralization attempts and public participation from 1964

After the abolition of the majimbo system, the government pushed through several constitutional
amendments that concentrated power in the hands of the presidency. By 1969, the system of
government in Kenya had been turned from being decentralized to a highly centralized one.
Democracy was dealt a near fatal blow with the abolition of Kenya People's Union (KPU) led by
Oginga Odinga in 1969. This turned Kenya into a de facto one party state.126) The lack of an
official opposition strengthened dictatorial and authoritarian rule. This authoritarian rule led to
the exclusion of majority of the citizens from the mainstream political process. 127) The burial of
public participation was in the offing.
In an attempt to encourage participation and bring the government closer to the people, the
government implemented various measures to decentralize. These are as reviewed below:
2.6.1 The Provincial administration

The Kenyatta regime inherited a hierarchical system of provincial administration through which
he ruled Kenya in much the same way as colonial governors before him.128) It was and still is a
replica of colonial administrative institutions developed to ensure that the colonial regime knew
what was happening throughout the country. It was also a system of deconcentration 129), in which
125)
Supra note 100.
126)
Kenya Peoples Union (KPU) was banned in October 1969. This was after the heckling of President Kenyatta
during the opening of the new Nyanza Hospital. The supporters of KPU confronted Kenyatta to produce "your
friend" Tom Mboya (who had earlier been assassinated) while shouting KPU slogans. The forces opened fire and
even shoot school children who were lining the President's route to welcome him. KPU was then banned and its
leaders detained. Kenya becomes a de facto one party state as KPU is locked out of the 1969 General Elections. See
Prof Ben Sihanya (2010) "Kenya: Post-colonial or neo-colonial state?" Teaching Notes for LLB I, University of
Nairobi Law School.
127)
Supra note 100.
128)
Joel D. Barkan and Michael Chege (1989) "Decentralising the State: District Focus and the Politics of
Reallocation in Kenya," Journal of Modern A frican Studies, Vol. 27, No. 3 Cambridge University Press
129)
Page 56
Deconcentration refers to the process of administrative decentralisation whereby the central government designs
the central government agents were posted to the various administrative divisions. 130)At the head
of this system was the Office of the President, supported by Provincial Commissioners (P.C.s)
with whom the president kept in close contact on a daily basis. Below the P.C.s were District
Commissioners (D.C.s), Divisional Officers (D.O.s), Chiefs and sub-chiefs.
The Provincial Administration was a very powerful political and administrative tool of the
central government. Barkan and Chege (1989) note that:
"Just as the President exercised his political authority by ruling via prominent regional leaders
who were given a measure of independence, so did he exercise control over the Provincial
A dministration by granting P.C.s almost unlimited authority. Indeed, in Kenyatta's state, they
were virtually lords in their own realms provided they administered their fiefs efficiently on the
regime's behalf."131)
P.C.s and D.C.s received their orders directly from the president which they then conveyed
downwards. The P.C.s and D.C.s were responsible for the administration of all government
policies in their areas, maintenance of law and order, and facilitation of the work of staff posted
to each province and district by the ministries. Policy was determined at the centre and
coordinated in the field by a team led by the P.C. President Moi maintained the same structure of
the provincial administration and used the machinery in the same way Kenyatta had done.132)
The provincial administration in theory was a decentralization mechanism whereby power was
decongested to the P.C.s, D.C.s, D.O.s, chiefs and assistant chiefs. In practice, the system
strengthened and consolidated the highly centralized rule of the executive.
Village Elders, who were unofficially part of the provincial administration and who reported to
a structure that enables its field agents and offices to work in close proximity to the local people. The District Focus
for Rural Development (DFRD) is another good example of deconcentration. See Albert K. Mwenda (eds) (2010)
Supra note 105.
130)
Prof Ben Sihanya (2011) "Executive I" Teaching Points for LLB I, Constitutional Process Class, University of
Nairobi Law School.

131)
Supra note 128.
132)
Ibid.
Page 57
the sub-chiefs, organized public forums known as village barazas 133)for the people to air their
views on matters affecting them and participate in governance. This was largely ineffective given
the fact that officials of the provincial administration were not decision makers or policy makers
but only subordinates who received and implemented orders from the centre. Thus, village
barazas were reduced to forums where government policies were communicated to the people
and forums for discussing livestock rearing, farming, pastoralism and other smaller issues
affecting the villages and rural areas.
Scholars have stated that it is the provincial administration which has been an impediment to
Kenya achieving an effective decentralization design. Prof Ben Sihanya notes that:
"one of the glaring legacies of the system is that it does not allow for public participation and has
been referred to as the
antithesis of people's right to govern themselves'"134)
2.6.2 Local Governments

The Independence Constitution of 1963 created local authorities. The Local authorities were to
have substantial autonomy from central government, with regions assuming the responsibility for
allocating them grants from revenue sources. 135) The KANU government was against the
decentralization structure i.e. the majimbo system and local authorities. It argued that the
structure of local government at independence, along with the majimboism were unworkable and
politically inappropriate; a tactic of divide and rule by the British. The government thus
empowered the provincial administration in order to weaken the local authorities. It is only after
the local government structure was redesigned to be centralized-compliant that the central
government started supporting them. The basis of centralization of the local authorities was the
133)
Baraza is a Swahili word for village meeting called by the local leaders. Under the Chief's Act, it was mandatory
for the local people in a community to attend such barazas whenever the local chief announced or called them. See
Obuya Bagaka (2011) supra note 117.
134)
Prof Ben Sihanya (2011) "Executive II" Teaching Points for LLB I, Constitutional Process Class, University of
Nairobi Law School.

135)
Patricia Stamp (1986) "Local Government in Kenya: Ideology and Political Practice, 1895-1974," A frican
Studies Review, Vol. 29, No. 4.
Page 58
1965 Sessional Paper that proposed local government reforms between 1968 and 1970.136)
The current local government structure is governed by the Local Government Act.137) The
structure of the local government is as follows: at the top most level is the city council and
municipal councils to govern big towns. For smaller towns there exists the town council and
urban council. For rural areas there exist the county councils. Citizens elect their representatives
to these local councils.
The major impediment to public participation in local government structures is their lack of
autonomy. They are structured in a way that the minister for local government has wide
discretionary powers regarding the leadership of these councils. For example, the Minister has
powers to establish any area to be or to cease to be a municipality, county or township.138)
Local governments have not been effective in promoting public participation for the following
reasons:
First, local governments function within the centralized system of the central government. They
have not been autonomous or independent entities. The minister for local government possesses a
lot of discretionary powers regarding these local councils, powers bestowed by the Act.
Second, the independence of these councils has been impeded by lack of financial resources. The
government has been neglecting certain councils in certain areas or delaying the relaying of
resources.139)
Third, the councils were taken over by local elites who had no intention of representing the
people and involving them in governance. These local elites sought election to the councils for
selfish personal reasons and this hampered public participation. Further, representation of people
136)
Ibid.
137)
Chapter 265 Laws of Kenya
138)
Section 5 (1) Local Government Act (Cap 265). In exercising the discretion the ministers acts in consultation
with the electoral body.

139)
Supra note 92.
Page 59
in the councils ended up not being effective due to these local elites.
Walter Oyugi (1983) thus predicts for Kenya:
"The future of democratic local government, characterized by popular participation in decision
making leading to the equitable allocation of council resources, is rather bleak. 140)
2.6.3 The District Focus for Rural Developm ent (DFRD) Strategy
The District Focus for Rural Development (DFRD) was another attempt by the government to
decentralize development and ensure citizen participation in development programmes. It was
presented in the form of a strategy i.e. the District Focus for Rural Development Strategy, which
was then adopted by the Moi government in July 1983. The DFRD strategy attempted to
decentralize development to all districts in Kenya. 141)
From the onset, the DFRD strategy sought to involve the public and promote participation from
the district level. The District as an administrative unit was headed by the District Commissioner
(DC) who received instructions directly from the president, the Provincial Commissioner (PC)
and Ministry Headquarters. When announcing the DFRD strategy on October 1982, President
Daniel Toroitich Arap Moi stated thus:
"W e will henceforth be looking upon each district as the basic operational unit... each district
team will become the major force and instrument for the design of rural development. This will
create for the people and their chosen representative a whole new world of opportunity."142)
The DFRD strategy laid down five broad objectives: 143) first, to broaden the base of development by
moving most decisions on planning and management of district specific projects close to the point of
implementation; second, to encourage local participation so as to improve problem identification; third, to
effectively mobilize and utilize resources; fourth, to remove delays in decision-making and speed up project
140)
Supra note 135.
141)142) Supra note 128.

143)
See KHRC report Harmonization of Decentralized Development in K enya: Tow ards A lignment, Citizen
Engagement and Enhanced A ccountability, a Collaborative Joint Research report by the Kenya Human Rights
Commission (KHRC) and Social and Public Accountability Network (SPAN) December 2010.
Page 60
implementation; and fifth, to increase coordination and sharing of development resources between various partners
and enhance utilization of local resources.144)
These objectives recognized that the current administrative structure lacked public participation
and that the bureaucracies in government were delaying decision making and implementation of
key projects. Further, the objectives recognized that the centralized system of government with
decision emanating from the centre had the effect of sidelining people who will be affected by
the decision and in whose locality the decision required implementation. Thus the strategy aimed
at involving the public and reducing the bureaucracies. This proved problematic for reasons
discussed below.
First, the structure of the DFRD strategy only shifted the responsibility of identifying, planning
and implementing projects to the districts while the centre still maintained the responsibility for
general policy and planning of national programmes.
Basically, what it involved was a
"coupling of the planning process to the budgetary process" whereby District Development
Committees (DDCs) were required to compile district budgets, for forwarding to central
ministries, which were tasked with prioritizing projects in conformity with the current five year
plan.145)
Second, the responsibilities of some of the officials of the DFRD programme coincided with
existing civil servants and officials of the provincial administration. The strategy created the post
of District Development Officer (DDO) and the District Planning Units (DPU).
District
development was brought under the supervision of the District Development Committees (DDC)
and subcommittees at divisional and locational level. 146) To rectify this, the DFRD had to be
implemented through the District Commissioners, who directly supervised the DDCs. Thus, the
DDCs operated under the executive authority of DCs, assisted by district departmental heads of
central ministries and technical support staff, along with participation by local MPs, chairpersons
144)
Supra note 128.
145)
Roger Southall and Geoffrey Wood (1996) "Local Government and the Return to Multi-Partyism in Kenya,"
A frican A ffairs, Vol. 95, No. 381 Oxford University Press.

146)
Supra note 143.
Page 61
of local authorities and district party organization, and representatives of development-related

parastatals and NGOs.147) This in turn just reinforced the existing structure and strengthened the
central grip on this strategy. Bureaucracy, a serious impediment to public participation, still
existed.
Third, as Dan Juma notes, the DFRD was advanced as a means of decentralization, but it turned
out to tighten central control.148) It was populated by civil servants from the provincial
administration and the national government who feared losing power to the DDC's.
That the DFRD never really achieved its objectives has led scholars to believe that maybe it had
some other hidden objectives. For example, Tordoff notes that the strategy was used as a tool for
"restructuring the base of the Kikuyu dominated state which Daniel arap Moi had inherited from
Jomo Kenyatta. It became an opportunity to increase the flow of resources to the less developed
regionswhile marginalising the Central Province, Kenyatta's former political base."" 149)
According to a recent Kenya Human Rights Commission (KHRC) report, little has been achieved
in the way of institutional development and participation of Kenyans in the planning process at
district level. 150) The major challenge has been political and bureaucratic control. In spite of lip
service paid to DFRD, Kenya's administrative structure has remained very hierarchical,
centralized and vertically fragmented.151)
2.6.4 Constituency Developm ent Fund (CDF)

The Constituency Development Fund (CDF) was established by the Constituency Development
Fund Act, 2003.152) The fund ensures that 2.5% of the government annual revenue is devoted and
147)
Supra note 145.
148)
Supra note 73.
149)
W. Tordoff (1998) "Decentralization: Comparative Experience in Commonwealth Africa," Journal of Modern
A frican Studies.
150)
Supra note 143.
151)
Ibid.
152)
The Act was amended in 2007.
Page 62
channeled directly to the constituency level to support development projects as identified and
prioritized by members of that particular constituency. The aforementioned percentage of funds
disbursement was later reviewed to 3.5% in the 2006/7 fiscal year. The fund is managed at three
levels; the national level, the district level and the constituency level.
The funds under the CDF programme go directly to the local level. The Act establishes a
Constituency Development Committee (CDC) composed of the elected Member of Parliament
(MP); two councilors in the constituency; one District Officer (DO) in the constituency; two
persons representing religious organizations in the constituency; two men representatives from
the constituency; two women representatives from the constituency; one person representing the
youth from the constituency; one person nominated from among the active NGOs in the area if
any; a maximum of three other persons from the constituency such that the total number does not
exceed fifteen; an officer of the Board seconded to the Constituency Development Fund
Committee by the Board, who shall be ex-officio. 153)
The Constituency Development Committee deliberate on project proposals from all the locations
in the constituency and any other projects which the Committee considers beneficial to the
constituency, including joint efforts with other constituencies, then draw up a priority projects
list both immediate and long term, out of which the list of projects to be submitted to Parliament
in accordance with section 12 shall be drawn.154)
CDF was implemented as an attempt to decentralize management of resources to the local level
and at the same time involve locals in utilizing the resources. CDF provides individuals at the
grassroots the opportunity to make expenditure choices that maximize their welfare in line with
their needs and preferences. To the extent that the local population is better informed about their
priorities, the choices made can be expected to be more aligned to their problems and
circumstances.
Unlike other development funds that filter from the central government through larger and more
153)
Section 23 (1) Constituency Development Fund Act.
154)
Section 23 (4) Constituency Development Fund Act.
Page 63
layers of administrative organs and bureaucracies, funds under this program go directly to local
levels and thus provide people at the grassroots the opportunity to make expenditure decisions
that maximize their welfare consistent with the theoretical predictions of decentralization theory.
Participation of the public depends on their level of education. In constituencies where the
community is educated they monitor the utilization of the funds and participate effectively in
selecting projects. In most cases the committee asks for people to send in their written views and
suggestions on projects they need. Mismanagement of these funds has been rife with the local
Member of Parliament (MP) populating the committee with his cronies and buddies. This works
to defeat public participation. Further, implementation of ghost projects has also been a major
point of concern.
2.7. Participation in multi-party Kenya

Kenya was a one-party state from 1969 to 1991. From 1969-1982, the country was a de facto one
party state i.e. the system existed as a matter of fact but had not been entrenched in to the
constitution or any legal instrument for that matter. This followed the banning of Kenya Peoples
Union (KPU) by the Kenyatta government and the detention of its leaders. From 1982-1991
Kenya was a de jure one party state. This followed a constitutional amendment in 1982 after the
failed coup de tat attempt where one-partism was entrenched in the constitution.
Citizen participation through airing of views was strictly monitored. Dissidents and critics of the
government were not tolerated. In most cases, such critics were detained without trial, tortured
and even assassinated. This was a period marred with complete failure of the bill of rights which
was continually abused by the executive arm of government through its agencies the provincial
administration and the police force. Democracy during this period had been effectively killed
save for the occasional participation in staged elections.
Citizen participation in the electoral process during this period was largely ineffective. In the one
-party ear, one who won KANU nominations became the new representative of the people.
These nominations were controlled by the KANU leadership with the president as the
Page 64
chairperson of the party. The mlolongo155)system of voting did not make things any better. This is
a system that caused a lot of discontent within KANU and intensified calls for multi-partism.
This calls coincided with the international wave for democratization. Multi-party politics was
considered a key feature of a democratic society. Due to increased pressure from civil society
groupings, activists, donors, and other actors, the government conceded and led the repeal of
section 2A of the Constitution in 1991 thus allowing multi-party politics.
Even with multi-party politics, it was still discovered that the highly centralized system of
government was an impediment to democratic governance and effective citizen participation. The
president still had a lot of power which he abused to the detriment of leaders in the opposition.
Thus calls for a new constitution were initiated. A new constitution was specifically desired to
review the system of government and reduce the excessive powers possessed by the president. In
the period 1991 to 2000, there was intensified pressure from civil society groups, opposition MPs
and other concerned groups for a new constitution. In 1997, the Inter-Parties Parliamentary
Group (IPPG) Accord was signed that made certain changes to the electoral process and law with
a view of democratizing it.
In 1997, some civil societies and church organizations launched their own initiative specifically
directed at over-hauling the constitution. This initiative was dubbed the ufungamano initiative. It
was formed on the premise of being a people driven process.
The government after pressure, both domestic and external was later forced to initiate the
constitution review process. On 10th November, 2000, the Constitution of Kenya Review
Commission (CKRC) was appointed and gazetted. The CKRC and ufungamano initiative were
parallel initiative both with a common objective of preparing a new constitution for Kenya. Thus,
through initiative of the CKRC chair, the two groupings were merged. The CKRC came up with
a draft Constitution of Kenya Bill which later became the basis of the deliberations at the
National Constitutional Conference (NCC).156)
155)
Mlolongo was a system of voting where people queued behind the candidates they supported during the elections.
156)
The National Constitutional Conference (NCC) was held at Bomas of Kenya.
Page 65
CKRC in preparing the draft constitution moved around the country collecting the views of
Kenyans. The CKRC process thus is credited for encouraging participation of Kenyans in the
drafting of the constitution. It is at this period that Kenyans became conscious about their right to
participate in processes especially the constitution making process.
2.8. Participation in the 2005 and 2010 referenda votes

Kenya has had two referenda votes in the past decade. The first was the November 21, 2005
referendum vote where Kenyans were required either to vote in favour or against the then
proposed constitution of Kenya (commonly referred to as the "Kilifi" or "W ako" draft). This
referendum vote was a chance for Kenyans to have the final say as to whether the document
proposed as the constitution reflected their views or not. A majority of Kenyans voted against the
constitution.157)
The following questions are posed as regarding the 2005 referendum: was the public fully
educated on the draft constitution? Who convinced and influenced the voting pattern of the
public; was it politicians or civic educators? Did the fall-out in NARC affect the outcome of the
referendum vote? What of ethnicity; did Kenyans disregard ethnic leaning in the voting for or
against the proposed constitution? Whereas it is difficult to answer these questions, the answers
are crucial in determining whether public participation in the referendum vote was effective.
The second referendum vote was the August 4, 2010 referendum. Kenyans overwhelmingly
voted in favour of the new constitution this time round. This study poses the following questions:
were Kenyans more educated on the proposed constitution than in 2005? What role did politics
plays in the final results of the referendum? What of post election violence; of what influence
was it to the voting pattern?
It is worth noting that the 2005 and 2010 referenda gave the public a chance for the first time to
determine the course of governance in Kenya. People participated in determining what was best
for them instead of letting the political class decide for them. The political class has been known
to make selfish decisions that only benefit a small section, mostly those in power.
157)
58.12% of Kenyans who voted cast their ballot against the proposed constitution.
Page 66
2.9. Conclusion
Kenya has had a poor run of public participation in the governance process since independence.
The public was reduced to spectators in the governance process. This has been due to the highly
centralized system of government in place. Attempts to decentralize the government have bore
negative results only leading to the strengthening of the centralized regime. Further, the capacity
of the public to effectively participate has been hampered by factors like illiteracy and ignorance.
Therefore, with the introduction of devolution, it is expected that public participation in
governance will be promoted. The next chapter interrogates in depth the provisions of the 2010
Constitution on public participation and governance.
CHAPTER THREE: THE CONCEPT OF PUBLICPARTICIPATION &

GOVERNANCE IN A DEVOLVED GOVERNMENT: PROVISIONS OF
THE 2 01 0 CONSTITUTION
3.1. Introduction
The 2010 Constitution was ratified and promulgated on the promise that it would ensure that
Kenya has better governance and that the public is more involved and participate in policy and
decision making. The Constitution entrenches in it various provisions that are geared towards
ensuring that governance improves and that public participation is enhanced. The centralized
system of government that existed in Kenya from 1964158) is blamed for poor governance,
corruption, mismanagement of resources, lack of public participation, underdevelopment among
other problems crippling the Kenyan economy and society. It is on this premise that during the
Constitution making process, the public agitated for a devolved system of government. A
158)
Between 1963 and 1964 Kenya had a decentralized system of government popularly referred to as regionalism or
majimboism. This system was abolished vide a Constitutional amendment in 1964. Thereafter, other numerous
Constitutional amendments were made which had the effect of creating a highly centralized system of government
and consolidating power on the institution and person of the presidency.
Page 67
devolved system of government is often associated with prospects for improved governance,
accountability, democracy, public participation, and development. This is not to say that a
devolved system of government is perfect or flawless. Kenyans having seen what a highly
centralized government could do to a country were of the popular opinion that a devolved system
will rectify the evils and failures of the centralized government.
Thus, the 2010 Constitution provides that Kenya is to have a devolved system of government.
Promotion of public participation and empowering people in governance is one of the core
objectives of the devolved government.
This chapter reviews public participation as a concept. It defines public participation, reviews the
levels of participation, methods of participation and analyses the ingredients of effective
participation. The concept is contextualized in to the Kenyan scenario. The chapter also reviews
governance as a concept and reviews the interrelationship between governance and public
participation.
The chapter then analyses the specific provisions of the 2010 Constitution on public participation
and governance. This is a review of what the Constitution says and includes an analysis of
whether the provisions are sufficient to promote public participation as a whole in governance.
3.2 Concepts of public participation and governance

3.2.1 Background
The idea of citizen participation is a little like eating spinach: no one is against it in
principle because it is good for you. Participation of the governed in government is, in
theory, the cornerstone of democracy - a revered idea that is vigorously applauded by
virtually everyone.159)
Public participation is an important concept in the governance process of states. It is based on the
principle that those who are affected by a decision have a right to be involved in the decision159)
Sherry R. Arnstein "A Ladder of Citizen Participation," available at
http://www.planning.org/pas/memo/2007/mar/pdf/JAPA35No4.pdf (last accessed on May 17, 2011)
Page 68
making process. Public participation is said to be a key parameter in enhancing public confidence
in governing institutions, formulating state policies based on people's needs, and receiving
necessary feedback on people's reactions to such policies.160)
The concept of participation is widely recognized by both international and regional legal
instruments. For example, Article 21 of the United Nations Declaration on Human Rights
(UNDHR) recognizes the concept of public participation as
democratic participation,' Article 25
of the International Covenant on Civil and Political Rights (ICCPR) provides for every citizen's
rights to take part in the conduct of public affairs and Article 13 (1) of the African Charter also
provides for public participation. 161) Further, the Rio Declaration on Environment and
Development 1992 recognizes the importance of public participation in the management and
maintenance of the environment.162)
The idea of public participation became fashionable following the failure of the top-down
development policies of the 1960s and 1970s. It was argued in the 1980's that development could
not be realized unless citizens participated in the politics of their countries. Non-governmental
Organizations (NGOs) and donors woke up to the fact that their projects often failed because
people were either not consulted or did not participate in the formulation and implementation of
those projects.163)
This section reviews public participation as a concept and tests the hypothesis that a devolved
system of government enhances and promotes public participation.
3.2.2. Definition
160)
John Gaventa and Camilo Valderrama (1999) "Participation, Citizenship and Local Governance," Background
note prepared for workshop on Strengthening participation in local governance Institute of Development Studies,
June 21-24, 1999.
161)
V Hart (2003) "Democratic Constitution Making," available at http://www.usip.org
162)
Principle 10 of the Rio Declaration on Environment and Development 1992.
163)
Nyangabyaki Bazaara (2002) "Legal and Policy Framework for Citizen Participation in East Africa: A
Comparative Analysis," Regional Report Centre for Basic Research 14 th October 2002.
Page 69
The concept of public participation is defined variously by different scholars, groups and
institutions.
Stiefel and Wolfe (1994) define participation as the organized efforts to increase control over
resources and regulative institutions in given social situations, on the part of groups and
movements hitherto excluded from such control.164) This definition connotes that participation is
only by organized groups and movements. What of individuals?
The World Bank Learning Group on Participation define participation as a process through
which stakeholders influence and share control over development initiatives and the decisions
and resources which affect them. 165) From this perspective, participation could be seen in the level
of consultation or decision making in all phases of a project cycle, from needs assessment, to
appraisal, to implementation, to monitoring and evaluation.
According to Smith (1983), public participation encompasses a group of procedures designed to
consult, involve, and inform the public to allow those affected by a decision to have an input into
that decision.166)
This study adopts the definition that public participation is the process by which an organization
consults with interested or affected individuals, organizations, and government entities before
making a decision. In this regard, public participation is two-way communication and
collaborative problem solving with the goal of achieving better and more acceptable decisions.167)
The key principle that stands out from the definitions revolves around involvement of people
164)
Stiefel M. and Wolfe M. (1994) A V oice for the Excluded: Popular Participation in Development: Utopia or
N eccesity? Zed Books, London. See also John Gaventa and Camilo Valderrama (1999) "Participation, Citizenship
and Local Governance," supra note 160.
165)
World Bank (1995) World Bank Participation Sourcebook Environment Department Papers Participation Series
Washington D.C. World Bank.

166)
Smith, L. G. (1983) Impact A ssessment and Sustainable Resource Management Longman. See generally Gene
Rowe and Lynn J. Fr(2000) "Public Participation Methods: A Framework for Evaluation," Science, Technology, &
Human V alues, Vol. 25, No. 1, pp. 3-29
167)
copr.nih.gov/reports/Definitions_of_CE_and_PP_Revised_508.pdf (last accessed on May 25, 2011
Page 70
affected by an action or idea in the decision making process.
3.2.3 Political participation

Political participation has been defined as those legal activities by private citizens that are more
or less directly aimed at influencing the selection of governmental personnel and/or the actions
they take. 168) This definition has two aspects: one, it connotes participation in the election of
officials. Second, it also connotes participation in the decision making by the elected officials.
The main concern is in action by citizens aimed at influencing decisions taken mainly by public
representatives and officials.
Parry, Mosley and Day (1992) broadly define political participation as taking part in the process
of formulation, passage and implementation of public policies. 169) This is a wider definition than
the earlier one. It in essence means that the public participates in any decision making affecting
the public not merely by elected officials but also other government representatives.
Richardson (1983)170) is of the view that political participation is more associated with
representative democracy and indirect participation. This would imply that once the public elects
officials or their representatives, participation ends there. The public indirectly participates
through these elected representatives. Richardson (1983) further state that political participation
expresses itself in individual and collective actions that include mainly voting, campaigning,
contacting, group action and protest all oriented towards influencing the representatives in
government, rather than active and direct participation in the process of governance itself. It is a
fact that whereas these elected persons might represent the wishes of the people, they might also
make decisions for their own personal benefit.
Public participation and political participation: a distinction
168)
Verba S. and Nie, N. (1972) Participation in A merica: Political Democracy and Social Equality Harper and Row
Publishers, New York.

169)
Parry G., Moyser, G. and Day N. (1992) Political Participation and Democracy in Britain Cambridge University
Press, Cambridge.
170)
Richardson A. (1983) Participation Routledge and Keegan, London.
Page 71
Public participation has always been confused to connote political participation. This is not the
case. Political participation is just one facet of public participation. Participation by the public is
all rounded to cover any aspect of the social, economic or political life directly or indirectly
affecting people.
3.2.4 Levels of public participation

There are different levels in which the public can participate. A study of the levels of
participation is important in order to understand which level is effective and thus the desired one.
Some levels are sham participatory levels, others achieve average results whereas others are the
most effective and result oriented.
At the lower levels of participation, the public merely acts as a rubberstamp to decisions already
made or policies already formulated. This has been described as
non-participation' or
"participation in participation" and not in decision or policy making. At the higher levels, the
public has control and directly influence the final outcome. This is the desired level of
participation. Sherry R. Arnstein (1969) 171) is of the opinion that the highest level of participation
is citizen control which should be synonymous with citizen participation. This would thus mean
that where citizens have no control in whichever aspect they have participated in, then they
should not be said to have participated at all.
Sherry R. Arnstein (1969)172) gives an eight-ladder typology of citizen participation. The level
depends on the power of the citizen and the extent to which they can determine the end product.
i) Citizen control
Citizen control is at the top of the hierarchy of participation. At this level, the public has power
and control over the outcome of processes they participate in. They govern a program or an
institution, are in full control of policy and managerial aspects and are able to negotiate. This is
171)
Supra note 159.
172)
Ibid.
Page 72
the desirable level of participation where participation is both meaningful and effective. Citizen
control is criticized by those in position as to create inefficiency since citizens who lack technical
expertise are in control of decision and policy making. They also argue that it slows down
important processes as officials seek the views of the public. 173)
In Kenya, participation of the public in democratic, free and fair elections is the closest that the
public has come to the level of citizen control. This has not been possible in many instances
considering that most elections in Kenya have been marred with irregularities, for example, vote
rigging, voter bribery, voter manipulation, among others. Further, ethnicity has been a constant
factor that has been affecting election outcome in Kenya since independence. Whether a public
participating in elections on ethnic consideration is in control is a question for consideration.
Therefore, it is possible to say that the only times that the public in Kenya were in control was
during the 2002 general elections, 174) the 2005 referendum and the 2010 referendum. This is
because these are the only processes that were hailed by election observers and other independent
bodies as being free and fair. When an electoral process is free and fair then it reflects the true
wishes of the public.
When it comes to public bodies, citizen control has both been unrealistic and unachievable. This
is because of the personalization of power by those in power.
ii)
Delegated power
This represents a level where policy and decision making power is delegated to citizens. This can
be through establishing agencies and committees where citizen have a clear majority of positions
and also have genuine specified powers in such agencies and committees. At this level, the ladder
has been scaled to the point where citizens hold the significant cards to assure accountability of
173)
Ibid.
174)
During the 2002 general elections, KANU lost its 39 year grip on power. Further, the presidential candidate,
Uhuru Kenyatta, who had been endorsed by the then president, Daniel Toroitich Arap Moi, lost. This was like a
revolution in Kenya and is comparable to citizen control in a participatory process.
Page 73
the program. 175)

In Kenya, committees established by public bodies, local government and the national
government are always populated with civil servants and other government officials. For
example, education committees or boards in Kenya at the district level are populated with civil
servants like the District Commissioner (DC), District Officer (DO), District Education Officer,
Inspectors, etc. This in turn does not give direct power to the citizens concerned. In most cases,
the relevant Minister or person establishing the committee reserves wide discretionary powers as
regards the committee's reports and findings. This has led to the refusal to adopt reports, the
shelving' of the report or amending it to the point of

mutilation.'
iii)
Partnership
At this level of participation, powerholders and citizens agree to share planning and decision
making through such structures as joint policy boards, planning committees and mechanisms for
resolving impasses. The leaders and the people are in partnership as regards policy formulation
and implementation and share important roles on the same. This works best where there is an
organized power-base in the community to which the leaders are accountable to. Such organized
groups can be like Civil Society Organizations (CSOs), Non-governmental Organizations
(NGOs), Community-based groups like youth groups, women groups among others.
Civil Society Organizations (CSOs) and Non-governmental Organizations (NGOs) have been the
groupings that have mostly participated in this manner in Kenya. The only problem that has
affected this level of participation has been political interference and the political factor or
question. Mostly, politically correct groups are the ones that were able to have their views
incorporated and considered.
iv)
Placation
Placation is a soothing strategy achieved by making concessions on another party. The citizen
175)
Ibid.
Page 74
will have some degree of influence although he/she does not have control. For example, leaders
can pick a few citizens and place them on boards of public bodies or agencies. These citizens
might have some influence on the decisions made. Also, it is possible that they might not have
any influence or contribution at all. Their participation will have no impact where: First, they are
outnumbered on the board. Second, where the leaders allow the citizens to advice or plan ad
infinitum but retain powers to judge the legitimacy or feasibility of the advice. Third, where the
citizens lack the technical know-how and knowledge to fully participate. And lastly, where the
handpicked citizens exhibit loyalty tendencies to the leaders and thus have no opinion of their
own.
This is the most common level of participation in Kenya. Most public bodies and authorities use
this mode to show that the public participated in its decision making and policy formulation. But
what the body does is to pick a few loyal locals to sit in a board populated by technocrats and
civil servants loyal to the cause of the body. The public representatives handpicked will in most
cases be corrupted to disregard the public interest or would be outvoted in decision making.
Another common method employed was ensuring that any board or committee at the local level
has a local representative, always the local leader for example the area councilor or area Member
of Parliament (MP). Whereas some of these would represent the will of the people in the
committees or boards, most would be corrupt and pursue their own selfish interests. Also, some
due to their illiteracy lack the technical capacity to comprehend the nature and magnitude of
decisions to be made.
v)
Consultation
Consultation involves inviting opinion of citizens on pertinent issues of governance. Such

invitation can be a legitimate step toward their full participation. Consultation can be through
attitude surveys, neighborhood meetings, and public hearings.
Consultation is an ineffective method of participation where: First, it is not combined with other
modes of participation. Second, the concerns of citizens and their ideas are not taken into account
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or consideration in final decision making. Third, citizens lack technical knowledge on the issue at
hand. Fourth, where there is no will on the part of the leaders to incorporate the public views in
the final decision i.e. if such consultation is merely a public relations exercise.
Sherry Arnstein (1969) states that what citizens would end up achieving is having "participated
in participation" and that what power holders would achieve is the evidence that they have gone
through the required motions of involving the people.
In Kenya, public hearing has been the most common way citizens have participated at this level.
The only problem with public hearings is that citizens have no power or control on the final
decision or report by the organizers of the hearing. Furthermore, only organized groups with
resources to conduct research on the topic under discussion participate effectively in such
hearings. This is mostly so where the hearing is on a technical aspect like geology, survey,
planning etc.
vi)
Informing
This level involves informing citizens of their rights, responsibilities, and options as regards
important projects to be carried out by public bodies. Citizens are educated on the policies
formulated or being implemented and the probable impact or effect on the general citizenry.
However, this level of participation emphasizes on one way flow of information i.e. from
officials to the citizens and usually has no channel for feedback and citizens have no power for
negotiation. This has also been the common level of participation in Kenya. Forums would be
called where the public will be informed the decision rather than participate in decision making.
vii)
Therapy
Sherry Arnstein (1969) calls this level a "level of non-participation." The focus of this level is on
curing citizens of their "pathology" rather than changing the situation and victimization that
create their
pathologies.' 176)
176)
Ibid.
Here, leaders see public participation as both unnecessary and
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undesirable. They only focus on ensuring the mindset of the public embraces what they are doing.
Leaders here are convinced that the public is wrong and do not care whether the public endorses
or rejects an idea. If the public rejects the idea, the strategy is to heal their minds in order that
they can embrace it.
viii)
Manipulation
Manipulation is another level of "non-participation." People are manipulated to endorse projects

without really knowing what they are doing. Education programmes to educate the public are set
up but with a hidden purpose of merely using these people to rubberstamp the decision. Also, this
happens where corruption is employed for the public to endorse a decision or where ethnicity is
invoked to be a factor in decision making.
3.2.5. Public participation methods

a) Referendum
Political participation in policy making can be through a referendum. A referendum is defined as
a direct vote in which an entire electorate is asked to either accept or reject a particular proposal.
This may result in the adoption of a new Constitution, a constitutional amendment, or a law. It is
a form of direct democracy. In a referendum, the vote is usually a choice of one of two options.
All participants in the process have equal influence and the final outcome is binding on all
citizens.
Participation in a referendum is by potentially all members of the national or local population
subject to existing legal limitations. In Kenya, Article 83 (1) of the 2010 Constitution gives the
qualifications required for one to be registered as a voter at elections or referenda: be an adult
citizen; not declared of unsound mind; and has not been convicted of an election offence during
the preceding five years. Apart from these legal restrictions on who qualifies to participate in a
referendum, many other factors combine to undermine effective participation in referenda. Such
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factors include literacy levels of the public, ethnicity, corruption, the political factor, prevailing
socio-economic conditions, among others. Thus, only a significant proportion of the public is
able to participate effectively in a referendum.
Kenya has had two referenda votes since independence. The first referendum was held on
November 21, 2005 where Kenyans were asked to either vote for or against the proposed new
Constitution of Kenya 2005177) . The specific referendum question was: Are you for or against the
ratification of the proposed new constitution? 58.12% voters voted against the proposed new
Constitution.
The second referendum was held on August 4, 2010 for Kenyans to either vote for or against the
proposed new Constitution of Kenya 2010. The question at the referendum was: Do you approve
the proposed new Constitution? Over 67% of voters voted in approval of the proposed new
Constitution.
b) Public hearings/inquiries
Public hearings are organized by government departments, institutions and non-governmental
institutions to provide a forum for the public to express their view and opinions on a particular
issue.
Such participation is by only interested citizens; those likely to be directly or indirectly affected
by the issue at hand. Participation of citizens is limited in number by size of venue and the
technicality of the aspect under discussion.
Although public hearings, inquiries or forums might be open to all members of the public, the
true participant in the forum will be experts who are present or are making presentations,
organized groups with knowledge of the subject, Civil Society Organizations, agencies, some
literate individual, or politicians who are interested in the matter. Lack of relevant knowledge
177)
Proposed New Constitution of Kenya, 2005 published on 22 nd August 2005 vide K enya Gazette Supplement N o.
63 by the A ttorney General.
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and lack of continuity as regards the participants thus become the major barriers to effective
participation in public hearings.
The hearing may last for weeks or months and is usually held during weekdays or working days.
This further limits participation by professionals who might not be able to attend because of
other engagements.
In Kenya, it is a statutory requirement that all Local Authorities make their budgets through a
participatory process and present them to the public, after the reading of national budget. This is
mostly through public forums or hearings. As the Kenya Human Rights Commission (KHCR)
notes in its report,178)
"the issue is not whether citizens participate but the nature and quality of their input during the
process. The Council usually has a great turn out of people but end up getting very little from
them due to limited capacity to engage with the issues. Professionals rarely participate. The
process also lacks continuity. Every year, there are new people participating."179)
Another factor undermining public hearing as an effective method of participation is that the
public may voice their opinion but they do not have direct influence on the recommendations and
conclusions of the committee or organizers. A follow up on the process always lack in most cases.
Therefore, if those seeking public participation lack the political or personal will to incorporate
public views, then public hearings become mere public relations exercises.
c) Public opinion surveys
Participation through public opinion surveys usually involves getting views of a large sample of
the public usually a representative of the population segment of interest. The exercise is enacted
through written questionnaires or telephone survey and is used for information gathering. This
178)
Harmonization of Decentralized Development in K enya: Tow ards A lignment, Citizen Engagement and Enhanced
A ccountability A Collaborative Joint Research report by the Kenya Human Rights Commission (KHRC) and Social
and Public Accountability Network (SPAN) December 2010.
179)
Ibid.
Page 79
can be a good way for policy makers to find out the popular public opinion as regards issues
proposed. For it to be effective the right questions should be asked on the questionnaire and the
population segment used should be a representative of the right persons interested in the issue.
Surveys document public opinions at one point in time and do not allow for an interactive
process or relationship between citizens and administrators.
d) Negotiated rule making
This involves a small number of representatives of stakeholder groups usually a working
committee of stakeholder representatives.
The purpose is to seek consensus on a specific
question. Negotiated rule making will be effective where the decision is to affect a smaller
number of the population segment.
e) Consensus reference
Consensus reference generally involves a group of ten to sixteen members of public mostly with
no knowledge of the topic who are selected by a steering committee as
representatives' of the
general public. It is preceded by preparatory demonstrations and lectures to inform panelists
about the topic, and then followed by a three day conference. This is followed by the lay panel
with an independent facilitator questioning the expert witnesses chosen by stakeholder panel.
f) Citizens' jury/panel
A citizen jury is composed of twelve to twenty members of the public selected by stakeholder
panel to be the representative of the local population. Also, the lay panel with an independent
facilitator questions expert witness chosen by stakeholder panel.
The conclusions on key
questions are then made via reports or press conferences.

g) Citizen/public advisory committee
This comprises a small group selected by sponsor to represent views of various groups or
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communities. The group is convened by the sponsor to examine some significant issue. It
involves interaction with industry representatives.
h) Focus groups
This is a small group of five to twelve selected to be representatives of the public. Several focus
groups may be used for one project. Free discussion on general topic with video or tape
recording and little input or direction from facilitator. This is used to assess opinions.
3.2.6 Effective public participation

Effective participation is described as participation that is real or authentic. Authentic
participation is deep and continuous involvement in administrative processes with the potential
for all involved to have an effect on the situation. It is also the ability and the opportunity to have
an impact on the decision-making process. Effective participation occurs when people affected
by the change are comfortable with the decision made.180)
Several factors determine whether or not participation is effective. These are discussed below:
i) Access to information
For participation to be effective it is important that the public has access to information. If
information is lacking participation will either be impossible, ineffective, un-meaningful,
impracticable or useless. The public has a right to have background knowledge and information
on issues affecting them. Such information ought to be sufficient and clear enough to enable the
public draw conclusions just by relying on it. The information in question here is the kind that
cannot be acquired by the public through their own private means but information that is only at
the hands of leaders or top policy makers. In Kenya, lack of information has been a serious
barrier to effective public participation. Faith W. Gathu (1995) notes that Kenya has experienced
censorship and a serious lack of flow of information about key issues, for example vital
180)
Cheryl Simrell King, Kathryn M. Feltey, & Bridget O'Neill Susel (1998) "The Question of Participation: Toward
Authentic Public Participation in Public Administration," Public A dministration Review, Vol. 58, No. 4 (July August, 1998), pp. 317-326.
Page 81
population statistics, political candidates position on issues, and even more important for a
democracy, the expression of opposing viewpoints. 181)
As regards public funds, Action Aid Kenya (2006) 182) notes that there is no formal
communication structure on many fund established and that information is passed on an ad hoc
basis. It recommended a uniform way of communicating with the public.
A problem arising is that access to information is not a sure way to participation. The public
might be aware of an issue then chose not to participate in it. For example, as regards various
public funds like CDF, FPE, Bursary etc., the KHRC reports that the majority of the public were
aware of the funds and yet the level of participation was low.
ii)
Transparent and accountable process
Also, for participation to be meaningful and effective, it should be premised upon a transparent
and accountable process. This means that the participation process should be transparent and
leaders should be accountable at the end of it all. A transparent process is one in which the public
while participating has a way of knowing how the final decision will be arrived at or directly
influence it. In case public views are disregarded, the public should have a right to question the
decision and seek formal redress. In Kenya, leaders have reserved too much power as regards
making decision and thus can disregard the public opinion or modify it to suit their own interests.
Therefore, public participation should be recognized as a right of citizens to increase its
effectiveness in decision making. This will empower citizens and gives them a level of control in
the process.
3.2.7 Barriers to effective public participation

The barriers to effective public participation are many. If these barriers are eliminated,
181)
Faith W. Gathu (1995) "Freedom of Expression in Kenya and USA: A Comparison," A frica Media Review Vol.
9 No. 3.
182)
Action Aid Kenya (2006) "Local Government Reforms in Kenya: Civic Engagement, Inclusivity and Gender
Mainstreaming in the LASDAP Process in Selected Local Authorities: A Policy Brief."
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participation will be effective and meaningful. John Gaventa and Camilo Valderrama (1999) 183)
identify the following as barriers to citizen participation in local governance:
a) Power relations
Power relations is a barrier to citizen participation since participation in itself is about power i.e.
who has power to make decisions, the citizen or the leader or any other social actor. The control
of the structure and processes for participation, for example, defining spaces, actors, agendas,
procedures etc is usually in the hands of governmental institutions and can become a barrier for
effective involvement of citizens. In Kenya, for example, Constituency Development Fund (CDF)
management structures provide for active citizen participation in development which enhances
ownership, democratization and sustainability. However, such participation is at the behest of the
Member of Parliament since the Act does not provide for recourse to constituents should the
Member of Parliament (MP) fail to hold local consultation forums. 184) Therefore, participation is
at the mercy of the MP who might elect to neglect it.
b) Level of citizen organisation
Citizens are able to counter existing power relations where there is some history of effective
grassroots organization or social movement. This is so because citizens speaking in one voice
under the umbrella of a community group are likely to influence decisions than individual
persons. Further, such groups can be able to attract funding in order to carry out relevant research
to enable them participate effectively on technical matters. Therefore, lack of organization by the
people is a barrier to effective participation.
c) Participatory Skills
As progress is made from lower to higher levels of participation (information, consultation,
decision making, and management) participatory processes become more complex and demand
183)
Supra note 160.
184)
Supra note 178.
Page 83
different types of skills, knowledge, experience, leadership and managerial capabilities. It is

noted that despite the Local Authorities in Kenya having clear provisions in the Local Authority
Service Delivery Action Plan(LASDAP) and budget hearings for active citizens' participation in
Local Authority development programs including projects funded by Local Authority Transfer
Fund (LATF), the quality of participation is low and there is need for capacity building. 185)
d) Political will
A fourth barrier to strengthening participation involves the absence of a strong and determined
central authority in providing and enforcing opportunities for participation at the local level, as
well as the lack of political will by local government officers in enforcing the legislation that has
been created for this purpose. In Kenya, many programme have been established by the central
government for the Local Authorities with clear provisions on participation. This has been
sabotaged by the Local Leaders lacking political will to involve the public in the process.
e) Insufficient financial resources at the local level
Financial resources to implement development activities influenced or decided by local citizens
come mainly from two sources: central allocations and local revenues. A common barrier for
citizen participation in decision-making found in most of the studies was the control of financial
resources by higher levels of authority and the meagre resources available for local activities.
Thus the institution lacks the funding to facilitate participation. They opt for the cheaper mode of
decision making which is internal.
3.2.8. Governance as a concept

Governance is defined as a process whereby societies or organizations make their important
decisions, determine whom they involve in the process and how they render account.186) The term
is not a synonym for "government."187) Rather it refers to a system of values, policies and
institutions by which a society organizes collective decision-making and action related to
185)
Ibid.
186)
John Graham, Bruce Amos and Tim Plumptre "Principles for Good Governance in the 21st Century," Policy Brief
N o.15.
Page 84
political, economic, social, cultural and environmental affairs through the interaction of the state,
civil society and private sector.188) Therefore, governance connotes an interactive process between
various societal actors.
As regards Local governance, the World Bank notes that itis a broader concept and is defined as
the formulation and execution of collective action at the local level. The World Bank further
notes that it encompasses the direct and indirect roles of formal institutions of local government
and government hierarchies, as well as the roles of informal norms, networks, community
organizations, and neighborhood associations in pursuing collective action by defining the
framework for citizen-citizen and citizen-state interactions, collective decision making, and
delivery of local public services. 189)
The classical definition of governance is provided by the United Nations Development
Programme (UNDP). UNDP defines governance as "the exercise of political, economic,
administrative and legal authority in the management of a country's public affairs at all levels. It
comprises the mechanisms, processes and institutions, through which citizens and groups
articulate their interest, exercise their legal rights, meet their obligations and mediate their
differences."190)
Governance has also been described by Minogue, 1997191) as both a broad reform strategy, and a
particular set of initiatives to strengthen the institutions of civil society with the objective of
making government more accountable, more open and transparent, and more democratic.
3.2.9 Participation as a principle of good governance
187)
Parliamentary Human Rights: Handbook on Devolution & Fiscal Decentralization Kenya section of the
International Commission of Jurists (ICJ Kenya), 2010.

188)
Ibid.
189)
Anwar Shah (2006) "The New Vision of Local Governance and the Evolving Roles of Local Governments," in
Anwar Shah (eds) Local Governance in Developing Countries World Bank, Washington DC.
190)
UNDP, United Nations Development Programme Policy Document. (UNDP), 1997.
191)
Minogue M. (1997) "The Principles and practice of good governance," British Council, Briefing, Law and
Governance, Issue 4.
Page 85
From the various definitions of governance it is noted that the term refers to an interactive, allencompassing process between various actors in the society. Governance process is an important
decision making process on matter to do with the economic, social and political issues in society.
Therefore, for governance to be effective and to meet its objectives then participation by those
affected is imperative. Further, for a process to be described as a governance process then an
element of public participation ought to be present. This would explain the reason why
participation is recognized as a fundamental principle of governance. Participation makes
governance more effective, accountable, and transparent and ensures that the other principles of
governance are respected and upheld.
Apart from public participation, the other fundamental principles of good governance include
respect for the rule of law and human rights, political openness, inclusiveness, equality and nondiscrimination, effective and efficient processes and institutions, legitimacy, competence,
transparency and accountability.
3.3 Public participation under the Constitution of Kenya 2010

Under the repealed Constitution 192) public participation was not provided for. It did not even
mention of the phrase "public participation." The term participation was mentioned a few times.
This was in respect of Commissions193) or Committees194) established under the Constitution
where it was stated that the decisions of such commissions or committees were not to be
invalidated by participation or presence of a person not authorized to be present or to participate.
Public participation in Kenya has been low mainly due to the centralized system of government
in place. Most legislation also failed to provide for public participation. Where it was provided
for, for instance in the national budget-making process, centralization of the process in Nairobi
limited participation. 195) Thus, inaccessibility, bureaucracy, lack of political will, constrained
192)
Constitution of Kenya 1969 (repealed).
193)
For example the Interim Independent Electoral Commission (IIEC).
194)
For example the Advisory Committee on Prerogative of Mercy.
195)
Supra note 178.
Page 86
information, and a combination of many other factors played to defeat public participation in
Kenya. Personalization of power has also been a major barrier to public participation in Kenya. It
promoted the culture of arbitrariness. This culture ran through the executive from the top-most
level, i.e. the presidency, to civil servants deployed by the central government at the local level.
Lack of democratic space in Kenya has also been a key factor that contributed to the low levels
of citizen participation in governance. Personal opinion on key government policies, strategies,
and decisions could not be entertained unless they echoed the government's position. Critical
opinion was not tolerated.
Even at the local level participation has generally been low. This has happened keeping in mind
that the public has constantly been electing leaders to represent them at both the national level
and local governments. The KHRC (2010) reports that this low involvement of the public
implied that once leaders were elected into positions, they rarely consulted the public despite the
existing, although in most cases weak, opportunities to involve the people and the changing
dynamics of projects identification and implementation cycles.196) The research findings of the
KHRC report also concluded that many people were not involved in the decision made regarding
the use of certain public funds aimed at developing the local area for example Constituency
Development Fund (CDF), Bursaries, and Free Primary Education (FPE) fund, among other. In
its report, KHRC finds that those who said they were not involved in the fund accounted for
66.1% for CDF, 68% for Bursary fund, 64% for FPE, 56.6% for NACC and 50.9% for LATF.197)
It is the lack of participation in governance at both the national and local level in the past that
made the public agitate for constitutional guarantee of participation during the Constitution
making process. Thus the reason the 2010 Constitution recognizes public participation as a
national value and principle of governance. Participation in this sense is equated to a right of the
public when it comes to governance. This is in line with the principles of good governance and
the notion that participation enhances accountability in governance.
196)
Ibid.
197)
Ibid.
Page 87
In this section, this study reviews public participation under the 2010 Constitution, how it is
guaranteed, and how it is likely to be promoted and enhanced.
3.3.1. Public participation as a national value and principle of governance

Public participation is recognized as a national value and principle of governance in Kenya by
the 2010 Constitution. This is in recognition of the important role that the public plays in
ensuring accountability, good governance and development of the country. It is also in
recognition of the fact that decisions made by the government, public bodies, public institutions
and public officials affect the public directly or indirectly.
The national values and principles of governance are as outlined in Article 10 (2). They are
patriotism, national unity, sharing and devolution of power, the rule of law, democracy and
participation of the people; 198) human dignity, equity, social justice, inclusiveness, equality,
human rights, non-discrimination and protection of the marginalised; 199) and good governance,
integrity, transparency and accountability. 200) "
These values and principles are to bind all state organs, state officers, public officers and all
persons 201) whenever any of them applies or interprets the Constitution; 202) enacts, applies or
interprets any law; 203) or makes or implements public policy decisions. 204) This means that officers
of the Judiciary, Parliament and the Executive among other officials and persons are bound by
the national values and principles of governance in dispensing their duties and obligations under
the 2010 Constitution.
The values create duties and obligations as follows:
198)
Article 10 (2) (a) of the Constitution of Kenya.
199)
Article 10 (2) (b) of the Constitution of Kenya 2010.
200)
Article 10 (2) (c) of the Constitution of Kenya 2010.
201)
Article 10(1) of the Constitution of Kenya 2010.
202)
Article 10(1) (a) of the Constitution of Kenya 2010.
203)
Article 10(1) (b) of the Constitution of Kenya 2010.
204)
Article 10(1) (c) of the Constitution of Kenya 2010.
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First, they create a duty for the government, public institutions, bodies, authorities and officials
to ensure that in making decisions, formulating policies and implementing strategies they involve
the public. The duty creates an obligation to facilitate participation process of the public in
whatever process in question.
Second, the provision creates an obligation for citizens to participate in governance. In this sense,
the public has a right of participation. The right is exercisable once officials facilitate a channel
through which participation can be done.
Values are core beliefs that guide and motivate attitudes and actions. They are principles and
priorities which help us make decisions on a daily basis. In the context of the 2010 Constitution,
the national values are a reflection of the spirit of the Constitution; the desires and beliefs that the
public expect of the 2010 Constitution. It can be argued that such values, where relevant, create
rights and duties and safeguards and guarantees. Therefore, it would be a right preposition, as
earlier implied, to assert that as a national value and principle of governance, participation is a
right under the 2010 Constitution.
Unlike the 1969 Constitution, the 2010 Constitution is express as regards the position of public
participation in the Kenyan society. The 1969 Constitution only guaranteed freedom of
expression.205) But this was not enough to facilitate participation of the people. Many factors
combined to curtail these rights of the people key among them overconcentration of power on the
presidency, political censorship of the media, constitutional limitations on these rights, and the
detention laws in place. It can be remembered that although Kenyans had freedom of expression,
the governments of the day did not tolerate or entertain critics or voices of dissent.
Making participation a national value and principle of governance is a major step towards
ensuring the public is fully involved in important government processes. Although participation
is not defined by the 2010 Constitution, parliament has been tasked with the role of formulating
legislation on the same. If the spirit of the Constitution is used in defining participation, a
205)
Section 79 of the Constitution of Kenya 1969 (repealed).
Page 89
background of what led the public to propose that participation be made a value will be
considered. It will be remembered that the centralized regime did not make it easy for the public
to participate in governance. A devolved system was desired to ensure participation is enhanced.
This will thus mean that what the people had in mind was full participation in the governance
process, decision making, policy formulation and implementation, in the political process, in
resource distribution and in other crucial processes.
3.3.2. Public participation in the management and maintenance of the

environment
In line with the Rio Declaration on Environment and Development 1992 which recognizes the
importance of public participation in management and maintenance of the environment, the 2010
Constitution also embodies the need for public participation in environmental management.
Principle 10 of the Rio Declaration states that:
"environmental issues are best handled with the participation of all concerned citizens, at the
relevant level. A t the national level, each individual shall have appropriate access to information
concerning the environment that is held by public authorities, including information on hazardous
materials and activities in their communities, and the opportunity to participate in decisionmaking processes. States shall facilitate and encourage public awareness and participation by
making information widely available. Effective access to judicial and administrative proceedings,
including redress and remedy, shall be provided."
Principle 10 of the Rio Declaration is the guiding principle for public participation in
management of resources and development activities. This was endorsed as a worldwide concept.
It is also in the Rio Conference that the concept of sustainable development was formally
endorsed. Sustainable development is achievable through international cooperation and the
encouragement of broadest public participation nationally and the active involvement of the nongovernmental organizations and other groups. 206)
206)
United Nations Conference on Environment & Development (1992) A genda 21 Rio de Janerio, Brazil, 3 to 14
June 1992.
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Under the 2010 Constitution, Article 69(1) (d) states that "The State shall encourage public
participation in the management, protection and conservation of the environment." This is in line
with the Rio Declaration and Agenda 21 and an important step in ensuring management,
protection and conservation of the environment is achieved. Previously, the state formulated
policies to protect the environment without public participation and such policies ended up
facing severe opposition from the public. For example, the relocation of communities from forest
area without first having consulted such communities has been a cause for conflict between the
government and many communities, for example the Maasai, the El Molo among others. This in
consequence has not made it easier to protect and conserve the environment. This provision will
act as a guiding principle for the government to ensure that the public is fully involved and
participate in efforts of managing, protecting and conserving the environment.
3.3.3 Public participation in political processes

Right to vote
The right of the public to participate in the electoral process is guaranteed under the Constitution.
Citizens have a right to vote and elect leaders of their choice both for the national government
and county government. The right to vote is a fundamental principle of democracy and ensures
that a government formed is of the people, for the people and by the people. Provisions on voting
existed even under the repealed Constitution.
Article 38 (3) of the 2010 Constitution guarantees for the citizens the right to be registered as a
voter and to vote by secret ballot in any election 207) or referendum, without unreasonable
restrictions. This means that a citizen cannot be unduly barred from participating in the election
of any public official and to vote for any issue at a referendum.
207)
Voting will be on three fronts: the national level, the county level and the local governments. At the national
level citizens will vote for a President and his running mate to be a deputy president; a Senator; and a Member of
Parliament. At the county level citizens will have a right to vote for a governor; and a member of the county
assembly. For the local governments citizens will have a right to elect councilors. In additions to all these, the 2010
Constitution also gives citizens a right to vote for representatives of the marginalized at both the national and county
level. These are youth representative, women representatives and disabled person.
Page 91
Moreover, the Constitution guarantees citizens the right to free, fair and regular elections based
on universal suffrage and the free expression of will.208) The timelines for holding elections are
stipulated in the Constitution. A general election is to be held after every five years. Further,
citizens have a right to participate in any ensuing by-election brought about by any reason
stipulated in the Constitution like death of the current representatives, resignation among others
provided in the Constitution. 209)
In the past, citizen participation in Kenya through voting was seriously flawed and ineffective.
The power of the public to elect a leader of their choice was seriously diminished by many
factors that combined to undermine effective participation in elections. Some of these factors are
reviewed below:
In some instances there was manipulation of elections in favour of certain candidates. This was
mostly in cases where the candidate in question was favoured by the top leadership of the party
or country. Some got direct nominations to be KANU candidates during the single party era. A
direct nomination by KANU ensured that one is elected unopposed to parliament or a civic
position. This denied the public the right to vote and elect leaders of their choice. Others used
powerful' people to intimidate their opponents to step down and ensure that they are elected
unopposed. In other instances, the president intervened to save his close buddies form losing
their political seats. For example, the Ngei amendment and his subsequent re-election to
parliament was a move by President Kenyatta to ensure his close buddy, Paul Ngei, is in
Parliament and the cabinet.
Rigging of votes was another form of election manipulation. This was especially the practice
after the advent of multi party politics in Kenya in 1992. President Moi is accused of having
rigged the presidential elections of 1992 and 1997 in order to retain power. In 2007, claims of
rigging in the December 27, 2007 general elections triggered a deadly post-election violence that
claimed lives of more than 1300 Kenyans.
208)
Article 38 (2) of the Constitution of Kenya 2010.
209)
Article 103 provides circumstances when the office of a Member of Parliament becomes vacant.
Page 92
Other factors that undermined effective participation in elections included voter bribery, negative
ethnicity, tribal clashes, and election violence.
In addition to the right to vote Article 38 guarantees every citizen the freedom to make political
choices, which includes the right to form, or participate in forming, a political party; to
participate in the activities of, or recruit members for, a political party; or to campaign for a
political party or cause. This would further increase citizen participation in the political process
of the country.
The right to vote was guaranteed yet some of the leaders elected were not true representative of
the wishes of the people. The public still did not have complete control when it came to voting
their desired candidates. This right to vote did not yield desired results. The single party system
had been criticized as undemocratic and that it undermined the public right to vote in leaders of
their choice. Even with the introduction of multi-partism, the problems related to voting persisted.
Questions to be considered then are: how will the 2010 Constitution ensure that the right to vote
is respected? How will it ensure that through the right to vote, public participation is promoted
and enhanced? How will the Constitution deal with other factors undermining the effective
participation through voting? It remains to be seen whether the Independent Electoral and
Boundaries Commission (IEBC) shall be able to facilitate free and fair elections. It is
commendable that the IEBC Bill entrenches and upholds the principle of public participation
which will prove important in ensuring electoral processes are free and fair.
Freedom of expression
The 2010 Constitution has been hailed as having one of the most comprehensive Bill of Rights
sections in Africa. In the Bill of Rights is guaranteed the freedom of expression. Article 33 (1)
states that "every person has the right to freedom of expression, which include freedom to seek, receive
or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of
scientific research."
Paragraph (a) of Article 33 (1) is important in promotion of public participation in processes.

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People cannot participate if they are not allowed to express themselves freely. It should be
remembered that participation during the Moi and Kenyatta eras was low since people's freedom
of expression had been curtailed. Persons who expressed their opinion freely as against the
government were detained without trial and tortured.
In recognition that the freedom can be abused, enjoyment of the freedom of expression is limited
in certain circumstances as stipulated in Article 33 (2) of the 2010 Constitution. It states "the
right to freedom of expression does not extend to propaganda for war; incitement to violence; hate speech;
or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm;
or is based on any ground of discrimination specified or contemplated in A rticle 27 (4)."
Right to access information

The Constitution guarantees the right to access information. Article 35 (1) states that every
citizen has the right to access information held by the State, and information held by another
person and required for the exercise or protection of any right or fundamental freedom. It has
been noted that lack of information has been an impediment to effective citizen participation.
With this right in the 2010 Constitution, the public can access more information and be able to
participate in a more meaningful way.
3.3.4 Participation in policy and decision making

The 2010 Constitution introduces a new dimension to public participation in the political process.
Previously, political participation of citizens ended at the ballot. Citizens would then trust and
hope that the elected persons will represent their will and wishes. Some elected officials did
indeed represent their electorates faithfully. Others would pursue their own selfish interests to the
detriment of the public that elected them. Centralization of government made some of these
officials inaccessible to the public. This is the problem of representative democracy.
The 2010 Constitution seeks to change this trend and promote participation even after the
electoral process.
First, the Constitution seeks to empower the citizens as against the elected representative. This is
Page 94
by giving power to citizens to recall an elected official who is not performing his duties as
expected. 210) This will have the effect of compelling elected officials to represent their people
faithfully for fear of losing their seat in case they underperform. The only problem with this
provision is that the Constitution has left to Parliament the mandate to legislate on the grounds
on which one can be recalled and the procedure to be followed. 211) Will parliament make it any
easy for parliamentarians to be recalled by their constituents? It is highly unlikely.
Second, the Constitution allows the public to participate in parliamentary proceedings and
proceedings of its committees. Participation here does not imply direct participation. The
Constitution seeks to make parliamentarians accountable by requiring that they conduct their
official business in an open manner. This is as stated in Article 118(1) (a) that Parliament shall
conduct its business in an open manner, and its sittings and those of its committees shall be open
to the public. Article 118 (1) (c) protects the public from unreasonable exclusion. It states that
parliament may not exclude the public, or any media, from any sitting unless in exceptional
circumstances the relevant Speaker has determined that there are justifiable reasons for the
exclusion. These are not new provisions. However, Article 118 (1) (b) requires parliament to
facilitate public participation and involvement in the legislative and other business of Parliament
and its committees. Does this provision allow or require Parliament as an institution to seek
direct public views on its legislative function? Does it imply that a Kenyan can directly gain the
right to invoke parliament to consider or not consider certain issues or circumstances in its
legislative process and other business? Or is the provision merely reaffirming the representative
participation of the public in Parliament? Whereas the section is not specific, I consider it to give
a leeway to the public to be more involved in the business of parliament and its legislative role.
This can be through the elected representatives and on an individual or group capacity.
The people have also under Article 118 and 119 of the Constitution ensured their access to and
participation in parliamentary matters through (among others) the right to petition for enacting,
amending and repealing of legislation under Article 119. However, Parliament still retains the
210)
Article 104 of the Constitution of Kenya (2010) for a Member of Parliament and Senate.
211)
Article 104 (2) of the Constitution of Kenya 2010.
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right, upon consideration, to effect the suggested changes. Under Article 104 the people have
also retained the right to recall non-performing legislators. 212)
3.4. Public participation in the devolved government

Devolution is often associated with the prospects of public participation.213) Devolution brings the
government closer to the people thus allowing them to participate more in governance. This in
turns leads to accountability and creation of a government that is responsive to the needs of the
governed.
Public participation is one of the object and principle of devolution under the 2010 Constitution.
Article 174 outlines the objects of devolution of government. Paragraph (c) states that one of the
objects of devolution is to give powers of self-governance to the people and enhance the
participation of the people in the exercise of the powers of the state and in making decisions
affecting them.214) Just like at the national level, the county assembly is also to conduct its
business in an open manner, and hold its sittings and those of its committees, in public; 215) and to
facilitate public participation and involvement in the legislative and other business of the
assembly and its committees.216) Further, a county assembly is not to exclude the public, or any
media, from any sitting unless in exceptional circumstances the speaker has determined that there
212)
Kipkemoi arap Kirui and Kipchumba Murkomen (2010) "The legislature: Bi-cameralism under the new
Constitution," Society for International Development Constitution Working Paper No. 9.

213)
Commission of Jurists (K enya-Section) and K onrad A denauer Stiftung

214)
Other objects of devolution are to promote democratic and accountable exercise of power; to foster national unity
by recognizing diversity; to give powers of self-governance to the people and enhance the participation of the
people in the exercise of the powers of the State and in making decisions affecting them; to recognize the right of
communities to manage their own affairs and to further their development; to protect and promote the interests and
rights of minorities and marginalized communities; to promote social and economic development and the provision
of proximate, easily accessible services throughout Kenya; to ensure equitable sharing of national and local
resources throughout Kenya; to facilitate the decentralization of State organs, their functions and services, from the
capital of Kenya; and to enhance checks and balances and the separation of powers.
215)
Article 196 (1) (a) of the Constitution of Kenya 2010.
216)
Article 196 (1) (b) of the Constitution of Kenya 2010.
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are justifiable reasons for doing so.

It should be noted that during the clamor for a new constitutional dispensation for Kenya, there
was general consensus that Kenya needed a devolved system of government. This it was seen as
the only way through which participation would be promoted and enhanced. Attempts to
decentralize the government of Kenya and power since independence were aimed at increasing
direct citizen participation of Kenyans in governance. For example, the DFRD strategy was
aimed at increasing citizen participation in projects at the local level. These decentralization
attempts ended up only consolidating the central grip on the country and did not promote citizen
participation. Faith W. Gathu (1995) thus notes that Kenya describes itself as practicing a multiparty guided democracy which somehow has not permitted broad participation.217) How then is
devolution likely to promote public participation? This is considered below:
3.4.1 How devolution is likely to promote participation

The hypothesis is that devolution promotes public participation in governance. It is for this
reason among others that Kenyans advocated for a devolved system of government. Devolution
facilitates greater popular participation in the following ways:
First, devolution brings the government closer to the people. This enables citizens to have greater
access, be better informed and to better understand the conduct of public business. In the Kenyan
context, the counties will be much closer to the people than the central government which is
headquartered in Nairobi.
Second, as Keith L. Miller (2002)218) notes, devolution places responsibility for managing local
affairs and for local sustainable development at the local level rather than central government.
This affords citizens greater access to, and ability to influence, the policy or decision-making
process. Further, communities will find it easier to pursue their development objectives, and
217)
Supra note 181.
218)
Keith L. Miller (2002) "Advantages & Disadvantages of Local Government Decentralisation," A presentation to
the Caribbean conference on Local Government & Decentralization at the Ocean View International Hotel
Georgetown, Guyana June 25 to 28, 2002.
Page 97
obtain support from local government, by their participation as a full partner in the local
governance process.
Third, due to the reduced chain of bureaucracies, the public will have greater access to
information. This in turn will enable them be able to effectively participate in issues. Further, it
will be easier to convey to the leadership of the county the expectations of the public.
Fourth, devolution facilitates or stimulates the growth and empowerment of civil society
institutions and networks, as citizens perceive the benefits of working in collaboration with local
government, to advance their interests. They will therefore organize themselves into appropriate
organizational forms, to pursue that objective. 219) Greater public participation will be the outcome
of this.
Dan Juma220) discusses some broad benefits of devolution. He notes that devolution promotes
democratic governance, equitable development and self governance. Democratic governance is
characterized by increased participation of the people, and greater political representation of
diverse political, ethnic, religious, and cultural groups in structures and processes of decision
making. Equitable development is achievable through increased people's understanding and
support of socio-economic activities and their participation or influence. Self governance on the
other hand enables citizens to determine or influence their policy preferences and results. 221)
Therefore, these broad benefits of devolution in one way or the other promotes public
participation in governance.
3.5 Participation by the marginalized and minorities

The 2010 Constitution seeks to protect and promote rights and interests of minorities and the
marginalized. This is through the recognition and promotion of affirmative action for these
marginalized and minority groups. Article 56 of the Constitution states that the State shall put in
219)
Ibid.
220)
Supra note 213.
221)
Ibid.
Page 98
place affirmative action programmes designed to ensure that minorities and marginalised groups:
participate and are represented in governance and other spheres of life; are provided special
opportunities in educational and economic fields; are provided special opportunities for access to
employment; develop their cultural values, languages and practices; and have reasonable access
to water, health services and infrastructure.
The requirement that the state shall put in place measures to ensure that these groups participate
and are represented in governance will have the effect of generally increasing their participation
in public life. For example, participation by these groups in political processes has always been
undermined by their marginalization by other state actors and groups. Minorities have always
been "muscled" out of the way by the majorities. The state is thus simply saying that yes,
majorities can have their way but minorities should have their say. Other provisions of the
Constitution enforce this clause on marginalization. For example Article 97 (1) (c) states that the
National Assembly is to consist of twelve members nominated by parliamentary political parties
according to their proportion of members of the National Assembly in accordance with Article
90, to represent special interests including the youth, persons with disabilities and workers.
Article 97 creates special seats in the Senate for the women, youth and persons with disabilities.
222)
3.6 Enforcement of participation

Public participation is a national value. This represents the spirit of the Constitution. Where any
public authority, body, institution or official disregards it, the resulting decision can be declared
void on the basis of being unconstitutional. The enactment by parliament of a supportive
legislation on this is expected to make it clearer. Parliament is required as per the Fifth Schedule
to enact legislation on Public Participation and County Assembly Powers, Privileges and
222)
Article 98 (1) states that the Senate consists of (a) forty-seven members each elected by the registered voters of
the counties, each county constituting a single member constituency; (b) sixteen women members who shall be
nominated by political parties according to their proportion of members of the Senate elected under clause (a) in
accordance with Article 90; (c) two members, being one man and one woman, representing the youth; (d) two
members, being one man and one woman, representing persons with disabilities
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Immunities as per Article 196 of the Constitution.

Interrogation of the legislative framework for public participation in a devolved government is
the main subject of discussion in the next chapter.
3.7. Conclusion
From the foregoing, it can be concluded that the 2010 Constitution does a better job in trying to
promote and enhance public participation in governance than the repealed Constitution. Through
the various measures like making participation a national value and principle of governance,
enhancing the freedom of expression, right to vote, right to access information and devolution of
government, the Constitution makes a strong case for the public to participate in processes.
Page 100
CHAPTER FOUR: FORMULATING PROPER LEGALAND

INSTITUTIONAL FRAMEWORK FOR PUBLIC PARTICIPATION IN
THE DEVOLVED KENYA
4.1. Introduction
This chapter proposes the proper legislative and institutional framework that should be put in
place to ensure that public participation and democracy is promoted and enhanced in devolved
Kenya. From the previous chapters, it is evident that promotion of public participation has been
inadequate in Kenya. The concept of participation was virtually unrecognized in the spheres of
governance. The centralized system of government in place from 1964 is stated to be the major
factor that hindered effective public participation. This system promoted personalized
governance of public institutions, administrative bureaucratic rings and overly centralized
decision making systems. These were not conducive to participation.
This study has also observed that devolution of power increases the prospects for public
participation in governance. Devolution in itself does not guarantee participation but rather only
increases the chances. This is because a devolved system of government being closer to the
people is more accessible. Ndulo (2006) states that that by creating a number of governments
below the national level, devolution multiplies the opportunities for political participation.
Further, when things go wrong, physical proximity makes it easier for citizens to hold local
officials accountable for their performance.223)
Participation of the people in a devolved government will only be possible, realistic and effective
where proper structures are in place to promote it. Such structures include legislative,
institutional and to an extent social structures.
The starting point should be enactment of proper legislation whose core purpose is to promote
223)
Ndulo, M. (2006) "Decentralisation: Challenges of Inclusion & Equity in Governance," in Ndulo M. (ed) (2006)
Democratic Reform in A frica: It's Impact on Governance and Poverty A lleviation James Currey, UK. Pp 79 - 98.
Page 101
and enhance participation. The legal framework enacted should establish mechanisms,
institutions, structures and means of promoting and enhancing participation. This chapter
analyses the core issues that the legislation should address to promote participation. Further, the
chapter proposes how such legislation should be structured and the institutions that should be
created in order to achieve participation in the devolved governments.
4.2. Issues to consider in formulating the proper legislative and

institutional framework for participation
In order to formulate a proper legal regime for participation in Kenya, three interrelated issues
need to be considered:
a) the operationalization of devolution;
b) guiding principles of participation; and
c) the guiding framework of the 2010 Constitution.
These are as considered below:
a) Operationalization of devolution
Participation is based on the promise of devolution. It is one of the objectives that devolution is
expected to achieve. Therefore, without an operational devolution mechanism, the promise of
public participation will be faced with a myriad of challenges.
The starting point is thus making devolution work. Kenya has been under a highly centralized
system of government for nearly half a century and changing to a devolved one might not be an
easy task. This study proposes that in order to operationalize devolution, the following issues
should be adequately addressed in subsequent policies or legislations:
i) Local Authorities (LA) and the Provincial Administration (PA)
The 2010 constitution does not abolish the provincial administration (PA) and the local
Page 102
authorities (LA). Article 17 and 18 of the Transitional and Consequential Provisions provide a
framework to be adopted in dealing with the provincial administration and the local authorities.
Article 17 provides that within five years after the effective date, the national government shall
restructure the system of administration commonly known as the provincial administration to
accord with and respect the system of devolved government established under the Constitution.
Article 18 on the other hand provides that all local authorities established under the Local
Government Act (Cap. 265) existing immediately before the effective date shall continue to exist
subject to any law that might be enacted.
That the provincial administration and local government shall continue to operate poses three
challenges: first, how these three units are to operate independently; second, how the units are to
work interdependently; and third, how the problem of duplication of roles and conflicts is to be
addressed.
Caution should be taken to ensure that structuring of counties is devoid of the influence of the
structures of the provincial administration and local government. Rather, the provincial
administration and local government should be restructured to follow the structures of counties
that shall be established. As far as Kenyans are concerned the LA and PA systems failed.
Therefore, they should be departed from and new structures and systems put in place for a
workable devolution design. The provincial administration is stated to have been the system that
acted as a stumbling block to real decentralization in Kenya. On the other hand, the legislative
framework of the local government stripped them of autonomy from the central government thus
strengthening centralization rather than promoting decentralization. Further the strengthening of
the PA led to the declining and the underutilization of the LA.224)
ii)
The principles of devolution
Proper operation of devolution will depend on how structures created will uphold the principles
of devolution that are universally acceptable and particularly those entrenched in laws creating
224)
Joshua M. Kivuva (2011) "Restructuring the Kenyan State," Society for International Development (SID)
Constitution Working Paper Series N o. 1, Regal Press, Kenya
Page 103
the devolved system. The following principles that underpin the operation of devolved
governments stand out: the principle of distinctiveness and inter-dependence; 225) the principle of
financial viability and independence; 226) and the principle of demographic viability.
In order to work, devolved structures need to be formulated in a way that uphold and respects
these principles. Legislation should enhance the distinctive nature of the devolved units from the
central government. Chances of interference by the central government on county operations
should be minimal. Further, clear channels for interdependence should exist to facilitate
operations of both governments.
The devolved units should also be created on a sound financial base. They should have resources
or be able to generate enough resource to sustain their operations. Lack of financial
independence might lead to derailment of county operations and over interference by the central
government.
iii)
legislation on clear roles and functions of various actors
The roles and functions of various actors in a devolved structure should be clearly outlined and
defined. Before counties are constituted, it should be clear what roles politicians, technical
implementers, administrators, civil servants, among others, are to play in county governance and
administration. This should be subject of legislation rather than central government policy.
Implementing devolution without clearly defined roles and functions of various officials might
lead to seizure of county governance by local elites. These might derail effective operation of
devolution and make it not achieve its objectives. Further, clear roles and functions of officials
will avoid building of bureaucracies that work against effective provision of services by the
counties.
iv)
Technical capacity and Human Resource to manage the counties
Policies should contemplate the building of technical capacity and a human resource base to
225)
Article 6 (2) Constitution of Kenya 2010
226)
Article 175 Constitution of Kenya 2010
Page 104
effectively manage the counties. This is important to ensure that effective implementation of the
devolved system of government is achieved. Most technocrats in government and civil servants
have been operating in a centralized system of government. They only know the bureaucracies
and modes of governance associated with central governance mostly characterized by arbitrary
decision making without public participation. Transferring these persons without training or
proper induction might end up leading to the shifting of central government inefficiencies to the
country government. This will be detrimental to the achieving of objectives of devolution,
participation being one of them.
If devolution is successfully and appropriately implemented as provided for in the 2010
constitution, the country will have taken a step closer to enhanced public participation. It should
be noted that achieving objectives of devolution largely depends on properly implementing the
system.
b) Principles of participation
In formulating the proper legislation on participation, the core principles of participation should
act as a guide. The International Association for Public Participation's Core Values 227) gives the
following as the core values and principles of public participation:
i)
Public participation is based on the belief that those who are affected by a decision
have a right to be involved in the decision-making process.
ii)
Public participation includes the promise that the public's contribution will influence
the decision.
iii)
Public
participation
promotes
sustainable
decisions
by
recognizing
and
communicating the needs and interests of all participants, including decision makers.
iv)
227)
Public participation seeks out and facilitates the involvement of those potentially
The International Association for Public Participation's Core Values Principles of Public Participation at
http://www.co-intelligence.org/CIPol_publicparticipation.html (last accessed on July 11, 2011)
Page 105
affected by or interested in a decision.

v)
Public participation seeks input from participants in designing how they participate.
vi)
Public participation provides participants with the information they need to

participate in a meaningful way.
vii)
Public participation communicates to participants how their input affected the

decision.
These values and principles should clearly stand out. Further, provisions for participation should
be express to avoid creating loopholes that can be exploited for selfish gains by local leaders.
c) Provisions of the 2010 constitution on participation
The 2010 Constitution is instrumental in formulating future legislations. The approach in
formulating the legislations vis--vis the constitution should be simple. First, the legislations
should be consistent with the Constitution. Second, the legislations should uphold the spirit of
the Constitution.
As regards participation, the Constitution recognizes it as a principle of governance and a
national value. The Constitution further lists participation as an objective of devolution. These
gives two interconnected options to the drafters of legislation on county government: first, the
institutions and structures created by the legislations should be premised on the core principles of
the constitution, participation being one of them; and, second, the legislation should be
formulated in a way that seeks to achieve the objectives of devolution set out in the Constitution,
again participation being among them.
Thus, the operationalization of devolution, guiding principles of participation, and the guiding
framework of the 2010 Constitution are important factors that should be considered the designing
of proper legislation that will promote participation and democracy. The next section will embark
on making proposals on how legislations can be designed to promote participation.
Page 106
4.3. Legal and institutional framework: key propositions

The 2010 Constitution proposes enactment of various legislations to support devolution. These
legislations are as listed in the fifth schedule. This study proposes how each of such legislation
should be designed in order to promote and enhance public participation and democracy. Further,
the study proposes other legislations that can be enacted in pursuit of the dream of complete
citizen participation.
4.4.4. Public Participation and County Assembly Powers, Privileges and Immunities
Legislation(Article 196)
Article 196 (3) bestows on parliament the responsibility of enacting legislation providing for the
powers, privileges and immunities of county assemblies, their committees and members. The
fifth schedule gives parliament a timeline of three years to enact this legislation. Enacting of this
legislation is premised upon Article 196 (1) that provides that a county assembly shall conduct its
business in an open manner, and hold its sittings and those of its committees, in public; and
facilitate public participation and involvement in the legislative and other business of the
assembly and its committees.
This study makes the following proposals as regards this legislation:
i) This legislation should be split in to two as follows:
Public Participation legislation
County Assembly Powers, Privileges, and Immunities legislation
The public participation legislation should provide for ways in which the public is to participate
in county governance generally. This should be detailed and should cover participation in all
organs, institutions and structures of the county. For example, the legislation should provide for
how the people are to participate in the business of the county assembly. Should their
participation be merely as spectators? Should their representation by representatives in the
County Assembly be enough? Definitely not! This study proposes that legislation should allow a
Page 107
certain level of direct participation by the people in County Assembly business. Yes, the
Constitution provides for elected and nominated (special) representatives of the people in the
County Assembly. But, whereas these officials are elected by the people to represent them, there
is a possibility that they might represent their own selfish interests rather than the people's
interest. The people should have an alternative in case such a situation arises. The solution will
be to structure the County Assembly in a way that allows a level of direct participation. This can
be through written representation or memoranda on certain fundamental issues of consideration.
The Assembly should then consider the direct views of the people and act on them. This would
be a departure from the colonial system of representation where parliament has largely been
unaccountable and the remedy of the people against it has been only through civil disobedience.
ii) It should provide for a flexible and simple structure of the county assembly
The County Assembly should have simple and flexible procedures and processes. It should not
be structured in the same way like the National Assembly. A flexible structure enables it to
discuss emerging issues of importance when they crop up without having to follow complex
processes or procedures. A simple structure should be easy to follow even by the illiterate people
in the village. It should be noted that the Kenya parliamentary system was adopted from the
British colonialist and followed the traditional and conservative British model of conducting
business. Simplicity has not been a term that could be used to describe parliament.
iii) The legislation should provide for limited privileges to the members of the Assembly:
Members of the County Assembly should have limited privileges and immunities. The law
should not make them to be "untouchable." Rather, the law should allow for closer and rigorous
scrutiny of their operations by the people. They should also be accountable for all their actions.
Taking of political responsibility for actions should also be provided for by this law. This will
reduce instances of abuse of power and office thus preventing counties being run the same way
the central government was.
iv) Provision for Monitoring and Evaluation systems
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There should be provisions for monitoring and evaluation system of the County Assembly and
other important institutions. This monitoring and evaluation system should be a transparent and
consultative one that involves all relevant stakeholders of the county government. The people,
Civil Society Organizations (CSOs) and Non-Governmental Organizations (NGOs) should be
involved in designing this monitoring and evaluation system. The system should have as its key
aim the ensuring that county assembly and other institutions are accountable to the people.
4.4.4. Legislation on removal of a county governor (article 181)
Article 181 (1) provides the grounds for removal of a county governor from office. These are:
i) gross violation of the Constitution or any other law;
ii) where there are serious reasons for believing that the county governor has committed
a crime under national or international law;
iii) abuse of office or gross misconduct; or
iv) physical or mental incapacity to perform the functions of office of county governor.
Article 181 (2) gives parliament the responsibility of enacting, within 18 months, legislation
providing for the procedure of removal of a county governor on any of the grounds mentioned in
clause (1). The achievement of objectives of devolution will largely depend on the county
governor. Therefore, such an office should be under close and constant scrutiny by the people to
make the governor accountable and efficient. The scrutiny is also to prevent the office creating
bureaucratic rings that would derail achieving of objectives of devolution. Further, the danger of
the governor centralizing power should be dealt with. This study therefore makes the following
propositions as regards this legislation:
Article 181 (2) only gives parliament the power to enact legislation on the procedure of
removal of a governor on the grounds provided in the Constitution. This study proposes
that the ground of abuse of office or gross misconduct be widely defined to cover nonPage 109
performance by the governor.
The legislation should specifically require that the governor facilitate participation of the
people before decision making. Arbitrary decision making should be expressly stated to
constitute gross violation of the Constitution.
Whereas the procedure of removal of a governor should not be simple, it should also not
be impossible. The procedure should give the people the power of determining the fate of
the governor. The practice in Kenya has been the formation of a commission of inquiry or
tribunal which is to recommend the removal or otherwise of a public official. If this
legislation is to adopt this method, it should be an open process that facilitates
participation of the people. Departure from this practice will be a welcome move.
4.4. Recommendations of the study

This study makes the following overall recommendations to promote and enhance participation
in devolved Kenya:
i)
Participation as a principle of governance should be a condition precedent to

formulation and implementation of any policies or programmes affecting the people.
ii)
The courts should establish the precedent that public decision made or policies
formulated or plans implemented without participation are unconstitutional. Judicial
jurisprudence on the same should be developed.
iii)
Legislations should enshrine mechanisms for citizen participations which should

include stipulation of the powers people can exercise in holding public servants
accountable.
iv)
Implementation of devolution should be done carefully to avoid transferring

inefficiencies as they were in the central government to the county government. Civil
servants from the central government should not be deployed to the counties without
undergoing relevant short term training on modalities of devolution. Kivuva (2011)
Page 110
states:
"care needs to be taken to ensure that the pathologies currently experienced by the
national government (that have necessitated devolution) are not transferred to the
counties."228)
v)
Collaborative measures should be instituted between the government and non-state

actors, especially Non-Governmental Organizations (NGOs) and Civil Society
Organizations (CSOs), to create citizen awareness on how devolution works and
sensitizing them on the need to participate in processes. The people should be made to
understand that participation is not a favour from anybody but a constitutional right.
vi)
Mechanisms for information sharing should be put in place to ensure that the people
have access to relevant information and public officials know what the views of the
people are.
vii)
Civil Society Organizations should be supported to organize advocacy campaigns to

educate citizens on how to conduct audits, evaluate projects, detect and expose
corruption in governance.
viii)
Use already existing community and leadership structures such as Community Based
Organizations (CBOs) as avenues to reach the community and educate them on
participation. CBOs can be facilitated to train the community on funds administration
and management and how they can participate on the same.
ix)
Support civil society organizations to undertake production and periodic circulation

of magazines and newsletters that create awareness on devolved structures and the
right of participation.
x)
Establish media partnerships through which talk shows and documentaries can be
used as forums to engage the community in discussions on local governance.
xi)
Economically empower poverty ridden communities who lack basic needs such as
food and shelter. Devolution in the context where citizens cannot demand
228)
Supra note 225.
Page 111
accountability would only lead to the capture of resources by a few elites or cronyism.
xii)
Devolution of power must be designed and practiced in a manner that advances

constitutionalism and nationhood.229)
xiii)
Participation by the marginalized and the minorities should be encouraged and

enhanced in all sectors of the devolved government. Mechanisms should be put in
place to facilitate this.
xiv)
Meaningful and effective participation depend on using the right public participatory
methods. This study proposes that the methods employed should have a monitoring
and feedback mechanism to allow the public the chance to know whether or not their
views were considered and implemented.
xv)
Participation should be used to address the issue of social inequalities and poverty in
the community. People should participate in resource management and distribution
for the good of the community.
xvi)
The political framework governing the electoral process at the devolved government
level ought to facilitate the direct participation of the users of services in the elections
of political leaders.
229)
Commission of Jurists (K enya-Section) and K onrad A denauer Stiftung
Page 112
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GOVERNANCE IN THE DEVOLVED KENYA: PROSPECTS FOR PUBLIC PARTICIPATION AND DEMOCRACY

GOVERNANCE IN THE DEVOLVED KENYA

Wafula Makokha Timothy

Abbreviations and Acronyms

1.12 Chapter breakdown.............................................................................................................................33

3.2.3 Political participation......................................................................................................................66

4.4. Recommendations of the study ...........................................................................................................106

Abbreviations and Acronyms

KANU..Kenya African National Union

CHAPTER ONE: INTRODUCTION AND RESEARCH

Constitutional Amendment Act No. 28 of November 24, 1964.

accessed on June 28, 2011)

The CIC is chaired by Mr Charles Nyachae, a Nairobi city lawyer.

The implementation of the Constitution is to span up to a period of five years.

enact within a period of five years.

Article 174 (a) Constitution of Kenya 2010.

Article 174 (c) Constitution of Kenya 2010

1.2 Background of the study

http://ssrn.com/abstract=1382821 (last accessed on July 19, 2011)

and American Constitutionalism," Law Society of Kenya (LSK) Journal, Nairobi.

of Modern A frican Studies, Vol. 27, No. 2, at p. 275.

of presidential authoritarianism," A frican A ffairs, London, Vol. 88 No. 351.

E. Gyimah-Boadi (1998) "The Rebirth of African Liberalism," Journal of Democracy 18-31

controversial December 27, 2007 general elections.

The Conference was turbulent and

http://www.newsfromafrica.org/newsfromafrica/articles/art_8160.html (last accessed on July 12, 2011)

This study reviews the constitution making

1.3 Objectives of the Study

Morris Odhiambo (2004) "Constitutionalism under A

1.4 Research Questions

1.5 Justification of the study

1.7 Literature Review

Devolution in Kenya: Prospects, Challenges and the Future28)

Affairs Research Paper Series No. 24, Nairobi.

Search for an Appropriate Decentralization Design in Kenya: Historical and

Walter Oyugi's discussion on the independence Constitution or majimbo Constitution is in depth

Devolution: Reconstructing the Kenyan State by Yash Pal Ghai 31):

1.8 Theoretical Framework

International Commission of Jurists (ICJ Kenya), 2010.

1.8.2 Defining decentralization

1.8.3 Dime nsions of decentralization

a) Administrative decentralization is the transfer of responsibility for the planning, financing

1.8.4 Forms of decentralization

Supra note 31.

Supra note 29.

Supra note 35.

1.8.5 Characte ristics of a devolved government

1.8.6 Devolution versus Majimboism

Supra note 36.

1.8.7. Devolution versus federalism

Supra note 29.

1.8.8. Devolution unde r the 2010 Constitution

regions of the country.

1.9 Conceptual Framework

the collaboration of Friedel Daiber (University of Trier)

George Orwell (1957) Selected essays Baltimore p. 149

Democratic Theory and Practice in A frica Heinemann Kenya.

Devolution and democracy

Supra note 56.

Many countries are promoting devolution in governance as a measure for democratization,

1.9.2. Conceptualizing public participation

Supra note 39.

V Hart (2003) Democratic Constitution Making available at http://www.usip.org

Washington D.C. World Bank.