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An Analysis of Public Participation in Kenya in the Constitutional

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An Analysis of Public Participation in Kenya in the Constitutional Seizing on a Mirage? An Analysis of Public Participation in Kenya in the Constitutional Transition Period 2010-2016 A thesis submitted in partial fulfilment of the requirements for the Degree of Doctor of Philosophy in Political Science in the University of Canterbury by Jane Muthoni Wairimu Marine Department of Political Science and International Relations University of Canterbury, New Zealand 2018 Abstract This thesis examines how the constitutional principle of public participation was actualised in Kenya under the 2010 Constitution. It uses a case study approach to examine the 2010-2016 constitutional transition period. The thesis is placed at the intersection of political science and public law, and draws evidence from examination of policy documents, national legislation county legislation, legal judgments and interviews with key informants. It explores how key public participation provisions contained in the Constitution of Kenya 2010 have been implemented in the constitutional transition period in which new legislation was enacted. The focus of this thesis is on public participation outside of elections: that is, on non-electoral participation. Examining the opportunities that exist in law for people to participate in public decision making between elections is particularly important given that the 2010 Constitution was passed against a history of deep struggle to achieve a greater voice for citizens in government. The objective of the new constitution was to devolve power to county level government and provide for more direct participation that would enhance accountability in Kenyan public life. This thesis offers an original contribution to knowledge on the implementation of public participation provisions under the 2010 Constitution. It does so in several ways. First, it identifies the new participatory legislative structures that have been realised in the constitutional transition period 2010–2016, and analyses the extent to which legislation has created a framework for ongoing opportunities for public participation in Kenya. Second, this thesis examines how public participation decisions have been determined by the courts, with a particular focus on county level decision making. Third, building on the analysis of court determinations, the thesis identifies emerging county models of public participation and 2 assesses how effectively the aspirations for public participation as expressed in the Constitution are being achieved at the county level. The findings of this thesis indicate that while public participation legislative structures and guidelines have been developed extensively at a national level, only a few counties have established their own legislative structures to enable public participation. The findings also suggest that the differences in interpretation of public participation are leading to emerging models of public participation at the county level in the constitutional transition period. These models I have termed: “centralised coordination”, “integrative coordination” and “bi- symmetrical” models of public participation. In addition, the thesis examines court decisions that have been made regarding public participation and tests them using the decision-making framework derived from the common law. My analysis suggests that the courts have set a low standard for what is considered adequate public participation. The thesis also identifies some key tensions between representative democracy and aspirations for direct public participation under the 2010 Constitution. Finally, this thesis asks what would be required to achieve full non electoral public participation in the constitutional transition perod 2010-2016? It concludes that if the vision of full public participation as articulated in the Constitution 2010 is to be achieved then it is necessary not only to ensure a clear constitutional mandate for public participation, national and county legislation, and facilitative court decisions promoting public participation, but also a public prepared to participate in collective decision making. 3 Contents Abstract ...................................................................................................................................... 2 Contents ..................................................................................................................................... 4 List of Figures ............................................................................................................................ 8 List of Tables ............................................................................................................................. 9 List of Abbreviations ............................................................................................................... 10 Glossary of Terms .................................................................................................................... 11 Acknowledgements .................................................................................................................. 12 Chapter 1 – Introduction ...................................................................................................... 15 1.1 Justification for the Research ................................................................................... 15 1.2 Research Objectives ................................................................................................. 21 1.3 Scope and Delimitation of this Research ................................................................. 22 1.4 Overview of the thesis ............................................................................................. 26 1.5 Reviewing the Literature and Kenyan Context ........................................................ 28 1.6 Summary .................................................................................................................. 51 Chapter Two – Conceptual Framework and Research Methods ...................................... 52 2.1 Introduction .............................................................................................................. 52 2.2 Conceptual Framework ............................................................................................ 52 2.3 Research Methods .................................................................................................... 76 2.5 Data Analysis ........................................................................................................... 84 2.6 Ethical Concerns ...................................................................................................... 85 2.7 Reliability ................................................................................................................. 86 2.9 Summary .................................................................................................................. 89 4 Chapter 3 – The Legislative Framework for Public Participation in Kenya ................... 90 3.1 Introduction .............................................................................................................. 90 3.2 The Kenyan Constitution ......................................................................................... 90 3.3 Interpretation of the Constitution ............................................................................. 92 3.4 Sovereignty of the People and the Supremacy of the Constitution ......................... 93 3.5 Analysis of the Articles for Participation in the Kenyan Constitution .................... 95 3.6 Overview of the Structure of Authority in the Constitution of Kenya .................... 96 3.7 National Assembly and the County Assemblies ...................................................... 99 3.8 National Assembly ................................................................................................. 100 3.9 County Governments ............................................................................................. 101 3.10 Wider Ways the Constitution Enables Public Participation .................................. 104 3.11 Public Participation in Subsidiary Legislation and Its Implications ...................... 106 3.12 Participation and the Legislative Process in Kenya ............................................... 119 3.13 National Government and Public Participation ..................................................... 120 3.14 County Government and Public Participation ....................................................... 123 3.15 Summary ................................................................................................................ 126 Chapter 4 – The Courts and Public Participation ............................................................ 128 4.1 Introduction ............................................................................................................ 128 4.2 Civil Society as the Petitioner ................................................................................ 130 4.3 Individual Citizens as Petitioners........................................................................... 156 4.4 Constitutional Body as Petitioner .......................................................................... 163 4.5 Summary ................................................................................................................ 166 Chapter 5 – Emerging County Public Participation Models 2010-2016 ......................... 171 5.1 Introduction ...........................................................................................................
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