Laws Fail Where Civic Knowledge Is Lacking: A Close Look into Kenya’s Public Participation Framework.

Introduction

The promulgation of the constitution of Kenya 2010 was widely regarded as a transition toward a transformative constitutionalism that  places the citizen at the centre of the governance process. This constitutional shift was an attempt to redefine the social contract between the state and its people but not merely a change in the text of the law. Article 1 of the constitution of Kenya 2010, mandates that all sovereign power belongs to the people who exercise it directly or indirectly through democratically elected representatives. This foundational principle implies that the public is the very source of the authority that state organs wield.

Central to this mandate is the concept of public participation , enshrined under Article 10 of the constitution of Kenya 2010. Under this provision, all state organs, state officers as well as public officers are required to involve the public in the review, formulation and implementation of public policies, administrative decisions and legislation.Public participation is not merely a technical requirement, rather, it is the mechanism through which the citizenry exercises oversight and shapes public policy. Article 10 of the Constitution lists it as one of the national values and principles of governance. Crucially, these values bind all State organs and public officers at all levels whenever they implement policy, enact legislation or interpret the law. Public participation is a justifiable right rather than a procedural nicety when examined through the lens of transformative constitutionalism as it is the mechanism through which citizens exercise oversight and shape the socio- legal landscape.

However the effectiveness of this participation depends on the level of civic awareness among the public. Civic awareness or the lack thereof, serves as the critical bridge between the constitutional ideal and the legislative reality. In a functional democracy, the creation of laws is a collective endeavour which demands the people’s voice to ensure transparency and accountability. Without an aware and informed public capable of understanding the technical implications of proposed statutes, the legislative process risks degenerating into a purely technical procedure which is conducted in isolation by the political elite. This informational asymmetry facilitates  the implementation of unfavourable and at times regressive laws as the state can claim procedural compliance while the substantive concerns of the public remain unaddressed or unheard

The legal Framework; The Constitutional Mandate and statutory framework

The Kenyan legal framework provides several robust provisions that facilitate an inclusive governance model. These articles collectively form the basis for the public right to engage with the state and influence the governing laws

Article 1(1) of the constitution of Kenya 2010 mandates that sovereign power belongs to the people. This establishes the people as the ultimate source of all public authority. Article 10(2)(a) regards public participation as a national value and hence obligates every state official to involve the public in decision making. Article 35(1)(a) grants the public the right to access information held by the state thus providing for the necessary transparency for meaningful civic engagement. Additionally, article 118(1)(b) directs the parliament to facilitate public involvement while Article 201(a) ensures openness and participation in public finance matters.

Despite this strong legal architecture, the lack of a comprehensive national law to operationalize these articles has led to a fragmented and inconsistent application of participation standards. Consequently the implementation of unfavourable laws is preceded by a failure to cultivate the very civic awareness the constitution demands.

The anatomy of civic awareness: Barriers and Deficits

Civic awareness in Kenya is characterized by a significant disparity between the high levels of interest in political outcomes and the low levels of functional understanding regarding the legislative policy making process. This deficit is rooted in not only historical but also socio-economic and structural factors that together, have excluded the majority of the public in meaningful engagement. A research by the Kenya Human Rights Commission (KHRC) and the Constitution and Reform Education Consortium (CRECO) consistently reveals a gap in public understanding concerning the roles and responsibilities of various elected and appointed officials.

Effective participation is realized  by the ability of citizens to seek, receive and impart information, as guaranteed under Article 33 and 35 of the constitution of Kenya 2010. Unfortunately, a significant portion of the Kenyan population remains legally illiterate meaning that they lack the critical capacity to understand, evaluate and apply legal norms in their daily lives. For decades, the Kenyan legal system has presumed that the individual knows the law, yet the state has made little effort to provide a nationwide program for the communication of basic legal rights.

In rural areas these barriers are even more pronounced. Traditional tools for public participation such as public hearings are often insufficient to engage the marginalized communities. The official languages of the law are recognized as English and Kiswahili which creates a barrier for the millions of Kenyans who may not possess advanced formal education. Adding insult to injury, the late publication of notices and the use of technical jargon in budget documents mean that even when the citizens attend meetings they are unable to offer meaningful input. Such an exclusion is detrimental especially when it involves fiscal legislation. For instance the Finance Act, where the hidden costs of taxes are buried within complex pricing mechanisms that the average taxpayer cannot easily decipher.

Socio economic constraints and the digital divide

The socio economic landscape of kenya also plays a major role in limiting civic awareness. 70% of the population in Kenya live on less than $3.65 a day, this creates a struggle for survival which often takes precedence over the exercise of political rights. In essence poverty acts as a deterrent to participation since individuals cannot afford the time or even the transport to attend county level or national forums.

The digital divide ensures that while urban and tech-savvy youths can use social media to mobilize, those in the rural areas and others without internet access are left out of the burgeoning digital participation space. Moreover, the shift toward digital platforms during the covid 19 pandemic further intensified these inequalities as the state relied heavily on virtual webinars. A poorly publicized online platform does not constitute engagement but serves as a narrow participatory space to a select, resourced elite.

How awareness Gaps lead to unfavourable laws

Low civic awareness and the implementation of unfavorable laws exist in a cyclical relationship in  that where citizens do not understand the legislative process, they are less likely to participate, and when participation is low, legislators feel emboldened to bypass constitutional requirements or even introduce last minute amendments that have not been vetted by the public.

The box ticking exercise

One of the most pervasive challenges in Kenyan governance is the reduction of public participation to a procedural formality. In essence, state organs hold public participation meetings to primarily comply with the legal requirements rather than informing and on the other hand integrating public opinion into the final policy. This is often manifested by:

• Insufficient Notice

Providing short notice (e.g., three days) for a nationwide bill, ensuring that the public has no time to analyze the document

• Inaccessible Formats

Releasing 200-page budget documents in technical language without simplified summaries or translations into local languages

• Selective Stakeholder Engagement

inviting only “known participants” or business associations, while ignoring marginalized groups, youth, and rural populations

• Failure to Provide Reasons

inviting only “known participants” or business associations, while ignoring marginalized groups, youth, and rural populations

This results in the enactment of laws that are unfavourable as they fail to reflect the lived realities or the needs of the Kenyan people. 

Representative failure

A key insight in the Kenyan context is the breakdown in the relationship between citizens and their elected representatives. A study revealed that 73.9% of respondents strongly disagreed that their area Member of Parliament took the time to inform them about various bills. Many citizens perceive MPs as overpaid individuals whose role is to support the locals in paying medical and school bills rather than legislative scrutiny. Such a misunderstanding of laws allows the MPs to justify high salaries citing constituent demands for personal help while simultaneously passing unfavourable laws that will ultimately increase the cost of living for those same constituents.

CASE STUDY 

The Finance Act 2023 and The 2024 protests

The finance act 2023 reveals how lack of meaningful public engagement and low civic awareness results in legislative and social crises. The act amended several tax laws including the IncomeTax Act, VAT Act, and Excise Duty Act in ways that significantly impacted the livelihoods of Kenyans.

Procedural Flaws

The constitutionality of the Finance Act 2023 was challenged on the grounds that the National Assembly introduced several amendments after a public participation report had been submitted. These amendments which were never subjected to public views were fortunately declared null and void by the Court of Appeal in the case of National Assembly & Another v Okiya Omtatah Okoiti & 55 Others 

The court of Appeal emphasized that public participation is not a mere formality and a bypass of such a process amounted to a grave error.

However,in the case of Cabinet secretary for National Treasury and Planning and four others v Okoiti & 52 others, the Supreme Court set aside the Court of Appeals decision declaring the Finance Act 2023 unconstitutional and held that the National Assembly had conducted sufficient public participation and there was no express constitutional obligation for parliament to provide written reasons for rejecting or adopting public views. This ruling lowers the bar for meaningful  public participation and creates an avenue for the parliament to disregard public sentiment so long as it meets the procedural requirement

The Social Health Insurance Fund

The implementation of the Social Health Insurance Fund to replace the National Health Insurance Fund also illustrates how a lack of civic awareness and inclusive participation leads to unfavourable legal outcomes.

The government hurriedly pushed through the Social Health Insurance Act 2023, the Primary Health Care Act 2023, and the Digital Health Act 2023 to realize Universal Health Coverage (UHC).

The High Court in the case of Mweresa & 3 others v Social Health Authority & another; Law Society Of Kenya & 3 others declared the SHIF unconstitutional citing a lack of meaningful public participation. The court observed that only professional stakeholders had been engaged while ordinary members of the public had not been sensitized. The act made registration a prerequisite for accessing public services potentially locking out millions of people from essential care.The act also introduced double taxation as Justice Chacha Mwita ruled that calculating the 2.75% contribution from gross income after income tax had already been applied is illegal and violates tax law.

The Privatization Act 2023

The privatization Act 2023 was designed to facilitate the sale of state owned companies such as Kenya Pipeline Company, the Kenya Seed Company, and the Kenyatta International Convention Centre (KICC). The government argued that these entities were trapped in bureaucracy and that privatization would boost productivity.

The high court in the case of Orange Democratic Movement Party & 4 others v. The Speaker of the National Assembly & 5 others quashed the Privatization Act and declared it unconstitutional. The court cited a lack of meaningful public participation and noted that the KICC is a national monument that has to be preserved under Article 11(2) of the Constitution of Kenya 2010

The case highlights that privatization is not merely a commercial exercise but one that requires the ongoing approval and acceptance from local communities.

Comparative perspectives and reforms

The South African Reasonable Test

In the landmark case of Doctors for Life International v speaker of the National Assembly, the South African constitutional court ruled that the parliament must facilitate public involvement in the law making process. The court established the reasonable test requiring the legislatures to enable effective participation, and that it must take into consideration factors like the nature and urgency of the bill and the level of public interest.

The South African model suggests that the state must not only provide opportunities but also the measures to ensure that people have the ability to take advantage of those opportunities.

Reforms ;The Public Participation Bill 2024; Bridging the gap

The ongoing efforts to implement the Public Participation Bill 2024 is a critical step towards institutionalizing these standards in Kenya. The Bill aims to shift participation from the zone of formality to actual engagement and public involvement in the country’s law making process.

Conclusion 

The research indicates that the lack of civic awareness is a structural barrier in Kenya that has facilitated the enactment of unfavourable laws. When the majority of the population lacks the legal literacy to analyze complex bills, the constitutional mandate for public participation is undermined.  The cases of the Finance Act 2023, the social Health Insurance Fund and the Privatization Act jointly demonstrate how the state prioritizes institutional convenience over meaningful engagement.  For Kenya to realize its vision of participatory democracy, it must invest in civic education. The judiciary should also condemn mere procedural application of the law on matters to do with public participation.

The constitution of Kenya 2010 has not been fully realized. Empowering citizens with rights such as the right to information will reawaken the spirit of  the constitution and the people will truly realize their sovereign power.

Bibliography

CASES

1.  Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006)
2. Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR) 
3. Orange Democratic Movement Party & 4 others v Speaker of National Assembly & 5 others [2024] KEHC 11494 (KLR
4.  Mweresa & 3 others v Social Health Authority & another; Law Society Of Kenya & 3 others (Interested Parties) [2025] KEHC 8365 (KLR)
5.  National Assembly & another v Okoiti & 55 others [2024] KECA 876 (KLR)

LEGISLATION

1. The Constitution of Kenya, 2010

JOURNALS AND ARTICLES

1. Caroline Njeri Gikibi1 & Dr. Heather Eddah Kipchumba, ‘The Impact of Public Awareness and Participation on Kenyan National Assembly Legislative Process’ (24th May 2025) vol 5 issue 2
2.   International Journal of Research and Review, ‘A Theoretical Review of Urban Community Legal Literacy in the Context of Citizenship Rights and Obligations’ (July 2025) ijrrjournal.com <https://www.ijrrjournal.com/IJRR_Vol.12_Issue.7_July2025/IJRR58.pdf>  accessed 12th March 2026
3. Office of the Attorney General and Department of Justice,‘Kenya Policy on Public Participation’ (Seasonal Papers NO.3 2023) paras 1.1-1.8
4. Elizabeth Brundige,‘Adjudicating the Right to Participate in the Law-making Process: A Tribute to Retired Chief Justice Ngcobo’ (2017)
5.  Katiba Institute,‘The High Court of Kenya declares the Privatisation Act 2023 Unconstitutional’ (2024) katibainstitute.org<https://katibainstitute.org/the-high-court-of-kenya-declares-the-privatisation-act-2023-unconstitutional/> accessed 15th March 2026
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7. JK Kibicho, ‘Beyond the Verdict; An Indepth Look at the High Court Judgement on the Social Health Insurance Act, Primary HealthCare Act and the Digital Health Act’ (2026) jkkibicho.co.ke<https://jkkibicho.co.ke/beyond-the-verdict-an-in-depth-look-at-the-high-court-judgement-on-the-social-health-insurance-act-primary-health-care-act-and-digital-health-act/> accessed 15th March 2026
8.  Bowmans, ‘Kenya; court of appeal declares the whole finance act, 2023 unconstitutional’ (August 2, 2024) bowmanslaw.com <https://bowmanslaw.com/insights/kenya-court-of-appeal-declares-the-entire-finance-act-2023-unconstitutional/ > accessed 14th March 2026
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16. IJRISS, ‘Public Participation and the Legislative Process in Kenya: A Case of Finance Act, 2023’ (October 2025) rsisinternational <https://rsisinternational.org/journals/ijriss/articles/public-participation-and-the-legislative-process-in-kenya-a-case-of-finance-act-2023/> accessed 13th March 2026
17. Mzalendo Report,‘BEYOND THE BALLOT: AN ANALYSIS OF CITIZEN PERCEPTIONS OF THE ROLES OF PUBLIC AND STATE OFFICERS’< https://mzalendo.com/media/publications/documents/2025/02_-_A_Civic_Awareness_Report.pdf> accessed 13th March 2026
18. The Parliament of Kenya,‘Public Participation in the Legislative Process’ (Factsheet 14, 2nd Edition)
19.  Manyange Margaret Kerubo, ‘AN ANALYSIS OF THE CHALLENGES OF IMPLEMENTATION THE RULE OF LAW IN EAST AFRICAN COUNTRIES’ (2026) repository.embuni.ac.ke<https://repository.embuni.ac.ke/server/api/core/bitstreams/cd0fc16c-1827-4024-abd8-205b5f4e7fd5/content> accessed 13th March 2026
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