Comparative Case Study Research on Public Participation in National- Level Government Fiscal Policy And

Comparative Case Study Research on Public Participation in National- Level Government Fiscal Policy and Budget Processes Outline of Case Study Kenya Jason Oyugi Nairobi, Kenya August 2015 Section 1: Introduction In the decades just after independence, Kenya had experienced long periods of human rights violations including ethnic divisions, land conflicts, arbitrary arrest, extrajudicial killings, detention without trial, torture, electoral violence, grand corruption and economic crimes under successive regimes. Most of these atrocities in public view, were directly or indirectly attributable to a weak constitutional order that concentrated power in the presidency and emasculated other arms of government and public voice. The period between 1988 and 1991 in particular, was marked by a long and acrimonious battle with opposition activists and civil society voices over the clamor for large scale reforms and an end to the single party era. As President Moi’s second term drew to a close, the it became clear that a weak constitutional architecture had been a key tool for the country’s previous ills and indeed, many stakeholders held the view that it was a recipe for disaster. The constitution gave unfettered powers to the Presidency, emasculated the legislature, limited individual freedoms and encouraged the plunder of national resources. National Budget allocation in particular had been marked by years of political favoritism, poor prioritization, lack of public participation and under development of regions that were politically hostile to the ruling party. With every growing election therefore, each ethnic community believed that capturing the presidency would guarantee almost exclusive access to national resources and public sector jobs since the president controlled their distribution. As a result, the stakes at each general election were high and many politicians resorted to pockets of ethnic violence to gain or retain political power in 1992, 1997 and even 2002 General Elections. In 2005, the first draft constitution was prepared and presented and rejected at a national referendum. The rejection of the first draft constitution immediately created two big crises – first, the country was heading into a general election in 2007 without a new constitution and secondly, the referendum campaigns had brought back old ethnic and political rivalries that were carried into the 2007 general election and which provided fertile ground for the post election violence of 2007/08. In the subsequent National Dialogue and Reconciliation Mediation Process brokered by the former UN Secretary-General Kofi Annan, the need to adopt a new Constitution was marked as an important pillar of Kenya’s transitional process. On August 4, 2010, Kenyans went to a second referendum and voted to adopt a new Constitution to overhaul the previous one. And while the Constitution was the result of a struggle that lasted for at least two decades, the urgency to adopt a new constitution in 2010 had largely been triggered by the post election violence. Kenya’s promulgation of a new constitution in 2010 marked an important turning point regarding how citizens can participate in public affairs. The Constitution itself had been 2 built from a rich, long and unprecedented struggle for citizen participation in public process. In re-writing the constitution, provided citizens with the opportunity to reconfigure hitherto skewed power relations and the possibility of extending these democratic practices beyond manipulation by authorities. Constitutionally, the benefit of this history is reflected in Article 10 where The Constitution recognizes public participation as a national value and principle of governance and further mandates parliament, in article 118, to facilitate public participation in the legislative and other business of parliament. Three key issues stand out under The Constitution of Kenya , 2010; First, The Constitution introduces the concept of rights based approach to development. the devolution of resources and policymaking authority to 47 counties (similar to states or provinces) which means that citizens now have far more numerous opportunities to they participate in policymaking processes. Citizens can now engage these subnational units to develop policy solution and to monitor the actions of government officials. Second, the national-level legislative branch now plays a much greater role in the budgetary process, which allows citizens, policy experts, and NGOS to directly participate in the budget enactment process. Public deliberation over the executive’s proposed budget is becoming a central part of Kenya’s budgetary process. More importantly, the enactment of The Constitution and the successor PFMA settled the age-long debate in Kenya on the budget process as a tension between the roles of the executive and the legislature - between technicality and democracy. The Constitution recognizes that the executive has a mandate to prepare the Budget, since it possesses the most comprehensive information on which to base revenue and expenditure decisions. However, it elevates the role of the legislature which is to exercise oversight and to authorize the executive to raise revenue and spend money. Third, there is now a much more specific focus on direct participation in public finance. Kenya took advantage of current knowledge to devise a legislative and policymaking process through which a much wider range of stakeholders and citizens are able to gather information about fiscal and budgetary issues as well as to contribute to the shape and implementation. Besides the political and constitutional reform process, public participation hin Kenya has also been greatly shaped by experiences of the Country during the development of the World Bank led first generation Poverty Reduction Strategy Papers (PRSPs) in 2002. The PRSPs were prepared through a wide-ranging consultative process of dialogue in order to build consensus on priority actions and activities necessary for economic growth and poverty reduction. The PRSP was preceded by the Interim Poverty Reduction Strategy Paper (IPRSP) released in 2001. Even though the IPRSP only involved limited consultations at the national level, the infrastructure and knowledge built over the period have provided the springboards for successive public participation processes. The PRSP consultations followed a three-tier approach: national, provincial and district levels with the stakeholders in the consultations 3 including the Private Sector, Civil Society, the Development Partners and local communities. The consultations covered both thematic areas to take care of important issues that are cross cutting as well as inputs from the Sector Working Groups which have become the standard pillars of public consultations for the budget processes since then to date. Report outline: The purpose of this report is to first provide an institutional mapping of the current Kenya institutional venues and processes that provide opportunities for public participation because many of the Constitutional reforms are very new. Section two provides the broader context for reform. Section three involves an institutional mapping, at national and subnational levels of the formal institutional opportunities for participation. All four stages of the public cycle are covered. There are three case studies at the end of section 3. Section 4 explores the impacts and outcomes of public participation. Given the very recent adoption of the 2010 Constitution, there are few concrete results. Although Kenya has adopted a series of progressive laws and institutions, there are still large gaps between public expectations and outcomes and participatory processes are only sustainable if people feel that their participation matters. In both the 2010 and the 2012 Open Budget Index Survey, Kenya’s scored 49 out of 100, which was a little higher than the average score of 43 for all the 100 countries surveyed but below the score of its neighbor, Uganda. Kenya’s score indicates that the government provides the public with only some information on the national government’s budget and financial activities during the course of the budget year. Kenya however does moderately well among those in East Africa on budget oversight and engagement scoring between moderate and strong in legislative strength, Supreme Audit Institution Strength and Public Engagement in comparison to its neighbors. Rwanda, Uganda and Tanzania in particular all scored weak in public engagement. According to the survey, the major areas of weakness in Kenya lay in the failure by treasury to disseminate the mid and end year review reports, inadequacy in the comprehensiveness of the budget and audit reports as well as the absence of a citizen’s budget. Notably however, the adoption of the Public Finance Management Act 2012 now provides for the preparation of and public dissemination of quarterly budget review reports by the Office of the Controller of Budget which has since been fully operationalized after the promulgation of the new constitution. Country overview and institutional context The Republic of Kenya is a unitary State with a mixed American style presidential system of government where the president is both the head of state and the executive and elected by universal suffrage, and a British style parliamentary system where parliament has powers to remove the president and his government from office 4 expressly through a parliamentary vote. This mixed system of government was adopted in 2010

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