JUMA OYOMBA LAW
Our Ref: JK/02/06/25
Date: 12th June 2025
Your Ref: TBA
GTC Towers 30th Floor,
Suite 315,
Private Box,
Nairobi.
aoaconsultltd@outlook.com
To Ms. Jacinta Kemei,
Brabara Plaza,
Private Box,
Nairobi.
Dear Ms. Kemei
RE: AN ANALYSIS OF LANDMARK CASES ON PUBLIC PARTICIPATION IN LAW
MAKING IN KENYA
Public participation is considered an essential tenet of the lawmaking process in Kenya. This
discussion shall analyze the Supreme Court decision in IEBC & 4 others v Ndii & 312 others; Ojwang
& 4 others (Amicus Curiae) (Petition E291 of 2021 & Civil Appeal E292, E293 & E294 of 2021
(Consolidated)) [2021]. It is equally known that decisions of the Supreme Court are binding upon all
lower courts.
PART A: BACKGROUND
In the above mentioned case (also referred to as the BBI case), the former President attempted to introduce
the Constitution of Kenya (Amendment) Bill, 2020. A split bench of the Supreme Court held that the
bill was irregular and unlawful because the constitutional requirement of public participation was not
satisfied through the process of the bill’s introduction.
PART B: LEGAL FRAMEWORK
These include Article 10 on the National Values and Principles of Governance that identifies
participation of the people as an imperative whenever any state organs, state officers, public officers
and all persons apply or interpret the Constitution, enact, apply or interpret any law, and make or
implement public policy decisions.
The Court renunciated the parameters for public participation as established in the Court of Appeal
case of Kiambu County Government & 3 others v Robert N. Gakuru & Others (2017) where the elements
can be extracted as follows;
i) it must be real and not illusory;
ii) the spirit of public participation must be attained both quantitatively and qualitatively; as many
fora and focal points as are known to be the way and places that the public communicate and
converge must be utilised for the prior dissemination of information pertaining to the intended
action and the opportunities for public participation;
iii) access to information and the facilitation of learning and understanding so that the
involvement of ordinary citizens is meaningful;
iv)
the creation of conditions that are enabling of the effective exercise by citizens of their right
to participate in the process of law-making and;
v) the employment and deployment of all reasonable measures by the relevant duty bearers to
facilitate the involvement by the public and to secure their participation considering the
peculiarities of each given circumstance.
The above principles were as well echoed in the Supreme court case British American Tobacco Kenya,
PLC (formerly British American Tobacco Kenya Limited) v. Cabinet Secretary for the Ministry of Health & 2 Others
PART C: ANALYSIS BY THE JUDGES
Based on her application of the reasonableness of notice and opportunity test, Chief Justice
Martha Koome found there had been public participation based on the processes leading up to the
development of the BBI Taskforce Report and that of the Steering Committee. She however found
that the subsequent addition of a second schedule for which there was no evidence of public
participation failed the test of reasonable public participation.
Justice William Ouko found that the question whether public participation took place or not is a matter
of evidence with the burden of proof lying with the party claiming the lack of it. In his view, there was
no evidence provided to rebut the allegations of public participation having taken place, but he agreed
with the Chief Justice’s holding expressed above on the Second Schedule.
Justice Njoki Ndungu considered this question as premature. In her view, the requirement for public
participation had not yet kicked in since the constitutional amendment process had not formally
started.
Justice Isaac Lenaola similarly found that the question of whether or not there had been public
participation was premature, with the High Court having truncated the progression of the process. In
his view, the step of collecting signatures for submission to the Independent Electoral and Boundaries
Commission did not amount to a part of a process which at that point would have required public
participation, and thus he was unable to find a justifiable reason for making any determination of the
issue. However, Justice Lenaola agreed with the Chief Justice and Justice Ouko’s findings that the
second schedule containing the list of proposed additional constituencies was unconstitutional for not
having been subjected to public participation.
Dissenting Judges
On the other hand, Deputy Chief Justice Philomena Mwilu found that at all material stages during the
process where public participation was required, none took place.
Justice Mohammed Ibrahim opined that the test of public participation had not been met because the
text of the Amendment Bill, which had been printed in English and published on the internet, was
not accessible to the majority of Kenyans both in language and in the format published.
Justice Smokin Wanjala found that the test of public participation had not been met because, beyond
mere assertion by the Co-Chair of the BBI National Secretariat that public consultations had been
undertaken widely, the Bill did not provide the form, nature and content of the said consultations.
PART D: CONCLUSION
The above analysis reveals a clear anomaly: Justice Njoki Ndungu and Justice Lenaola opined that the
requirement for public participation had not kicked in at the stage at which they evaluated the case
thus obviating the need for an enquiry into the same; while Chief Justice and Justice Ouko proceeded
to evaluate the evidence before them, reaching the clear determination that public participation did
take place. Evidently this divergence emerges from the different premises adopted by the respective
judges and it is curious that Justices Ndungu and Lenaola’s views are counted along with the two
judges who concluded there was public participation.
Therefore, what are the “must haves” of a Bill to legislate on public participation in Kenya?
Following the contestation in the courts as outlined above, the Bill must be prescriptive about precisely
what amounts to public participation; it must stipulate the evidentiary requirements that can attest to
public participation; and must provide specific guidance relevant to the various contexts where public
participation must be undertaken such as processes for the amendment of the Constitution of Kenya.
Yours Faithfully
Juma Tom
Thomas Juma