BY SAM ALFAN.
The Supreme Court has ruled that public participation must be real and illusory.
In a judgment where British American Tobacco (BAT) had challenged sanctions imposed by the government on cigarette manufacturers and importers, the top court said public participation is not a cosmetic or a public relations affair.
“It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation,” the Judges stated.
The court added, “As a constitutional principle under Article 10(2) of the constitution, public participation applies to all aspect of governance.”
The judges in a judgement read by lady justice Njoki Ndung’u said that lack of prescribed legal framework for public participation is no excuse for not conducting public participation, the onus is on the public entity to give effects to the constitutional principle using reasonable means.
They added that public participation is not an abstract notion, it must be purposive and meaningful and public participation must be accompanied by reasonable notice and reasonable opportunity and reasonableness will be determined on a case to case basis.
The five judges added that public relation is not necessarily a process consisting of oral hearing, written submissions can also be made and the fact that someone was not heard is not enough to annual the process.
Allegation of lack of public participation does not automatically vitiate the process and the allegations must be considered within peculiar circumstances of each case, the mode, degree, scope and extent of public participation is to be determined on a case to case.
They noted that the public officers or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
MEANINGFUL COMPONENTS OF PUBLIC PARTICIPATION.
Among issues listed by judged as meaningful components of meaning public participation include clarity of the subject matters of public to understand structures and processes (medium of engagement) of participation that are clear and simple.
The opportunity for balanced influence from public in general commitment to the process, inclusive and effective representation, integrity and transparency of the process and capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.
