WHO Member States endorsed a resolution to implement, strengthen and sustain regular and meaningful social participation in decision-making processes for health, at the seventy-seventh World Health Assembly held in May of 2024. As if on cue, the High Court of Kenya suspended various health laws including the Primary Healthcare Act, Digital Health Act and the Social Health Insurance Act, for lack of adequate participation of the people, in the enactment process of these laws. The relevant government agencies were directed to carry out proper public participation before reenacting the said laws.
Kenya’s Constitution, which is the supreme law of the land, includes public participation as one of the fundamental principles of governance. Additionally, it requires Parliament to ensure public participation in the law-making process. The public participation principles as enshrined in Kenyan law are similar to those envisioned under the WHO resolution on social participation. These include transparency, integrity and inclusivity.
The Public Participation Bill, which is currently before the Kenyan Parliament seeks to provide a framework for effective public participation as envisioned under Kenya’s Constitution. Members of Parliament will need to consider the Bill alongside the Constitutional requirement as further elaborated by the High Court. For instance, the court stated that the public participation process should include proper sensitization on the nature of legislation or policy to be passed. While enhancing public awareness has been included as one of the objectives of the Bill, the public participation process envisaged in the Bill does not contain any substantive provisions on sensitization and awareness building. The public can only effectively contribute to the law-making process or such other processes that affect them, if they are well appraised of the matter at hand. The Kenya Institute for Public Policy Research and Analysis identifies low levels of awareness as one of the key barriers to public participation. Robust civic education structures and communication avenues are therefore critical and there may be need to amend the Bill to include guidelines on the issue of sensitization as part of the public participation process.
The court also highlighted the need for the public to be given adequate notice for purposes of their participation. The Bill underscores the importance of adequate notice and is therefore aligned in this respect.
Members of the public should also be able to access the information required in a convenient and practical manner to enable them contribute and provide their views. While the Bill takes this into consideration, there may be need for the government to invest in infrastructure such as ICT, to facilitate widespread dissemination of information. A study conducted by the Kenyan ICT Authority in 2020 on the adoption and maturity of ICT levels revealed that most counties were still grappling with adopting and using ICT to improve governance.
Another key requirement for public participation that the court highlighted was that where views submitted by the public are rejected or declined, reasons for such rejection and dismissal should be stated. This would ensure that the public participation process is not merely done to tick a box or as a public relations exercise. This is also envisaged in the Bill, which provides that following a public participation process, the final decision should be made available to the public, including reasons for the decisions taken. The Bill goes further to provide that the relevant public entity should disclose all relevant information to enable the public understand and evaluate the decisions taken.
Implementing a public participation process that meets the legal requirements will require adequate allocation of resources and public entities will need to factor this in their annual financial estimates.
The recent developments in Kenya as well as the WHO’s resolution highlight the critical importance of meaningful public participation in health legislation. To ensure effective contribution from the public, Kenya’s Public Participation Bill should be passed into law with the necessary amendments to enable the country foster a more inclusive decision-making process, ultimately enhancing the effectiveness and legitimacy of governance, including with respect to health matters.
