As the year comes to an end, you’ve probably heard of several Acts being challenged in court on grounds that, either the general public or people likely to be affected by the Act weren’t consulted during the making of the Act. Public participation especially in the legislative space is a fairly new concept and there are no standardized laws or procedures regulating how it should be done; yet, this is no excuse to by-pass it, and the courts will hear no excuses either.
There are several things the court will consider, but to help you, this is a general guide to avoid the frustrations of having your Bill declared unconstitutional due to lack of public participation.
To begin with, do it early. You have already developed a draft and you intend to table it. You need to know that once you table it, several forces come into play that will make it more difficult to amend your Bill. It is important to consult widely before you finally table the Bill. This will allow you to amend it more easily.
However, if there is concern that your idea might be “hijacked” and tabled before you, then table it as soon as reasonably possible but make sure you conduct more civic engagement on it before it advances to later stages. You can still introduce amendments even when the Bill is tabled. Furthermore, nothing stops you from engaging the public even after the Bill is tabled.
Secondly, keep a small crowd when conducting a public participation forum. But don’t take this to mean segregating members of the public. A small crowd allows you to have a more meaningful engagement which should be the objective of public participation. Consequently, don’t underestimate Wanjiku. You will be shocked by how much Kenyans know. A local farmer or a boda boda understand a lot about this country owing to their nature of work. Don’t be dismissive. Listen.
Nevertheless, you shouldn’t leave out the experts. Where necessary, deliberately seek the opinions of experts. Even though ordinary citizens understand the context of their challenges, experts offer you highly technical, informed and researched information. If for example you are sponsoring a Bill on nuclear energy or biotechnology, the input of experts will be more beneficial.