PUBLIC PARTICIPATION IN THE MAKING OF STATUTORY INSTRUMENTS IN KENYA- LESSONS FOR REGULATORY AUTHORITIES

A. Introduction

Public participation remains a constitutional and statutory prerequisite in the formulation of legislation, policy and statutory instruments in Kenya. Public participation gives effect to the sovereignty of the people by enabling people affected by public decisions to contribute to the decision-making process. Beyond serving as a procedural requirement, public participation promotes transparency, accountability, legitimacy and public confidence in legislative and regulatory action. Regulatory authorities must therefore ensure that public participation is not treated as a mere formality but as a meaningful process through which stakeholders are informed, consulted and their views considered before decisions are finalized. Failure to undertake meaningful public participation exposes statutory instruments to legal challenge and possible invalidation by the courts.

B. PUBLIC PARTICIPATION FRAMEWORK IN KENYAN

Article 10 of the Constitution identifies participation of the people as a national value and principle of governance. It recognizes public participation as one of the national values and principles of governance binding all State organs, State officers, public officers and citizens whenever they apply or interpret the Constitution, enact or interpret any law, or make or implement public policy decisions. In addition, section 5 of the Statutory Instruments Act, 2013 requires a regulation-making authority, before issuing a statutory instrument, to make appropriate consultations with persons likely to be affected by the proposed instrument. Section 5(3) specifically requires notification, either directly or by advertisement, to persons likely to be affected by the proposed regulation. In British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Ltd (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR), the Supreme Court of Kenya held that public participation must be real, meaningful and purposive. The court highlighted the following principles of public participation:

• A constitutional principle under article 10(2) of the Constitution, public participation applies to all aspects of governance.
• The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
• The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.
• Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to fulfil a constitutional requirement. There is need for both quantitative and qualitative components in public participation.
• Public participation is not an abstract notion; it must be purposive and meaningful. f. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case-by-case basis.
• Public participation is not necessarily a process consisting of oral hearings; written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
• Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case-by-case basis.

C. PARAMETERS OF MEANINGFUL PUBLIC PARTICIPATION

For public participation to meet the constitutional and statutory threshold, regulation-making authorities should ensure that the process satisfies the following key parameters:

1. Clarity of the subject matter

A regulation-making entity should define the purpose, scope and likely effect of the proposed regulations in a language that the affected public can understand. It should publish the draft instrument together with an explanatory memorandum that identifies the problem the instrument seeks to address and explains the obligations, rights, costs, or administrative burdens that may arise. Where the regulations is technical, the public entity should pro vide summaries, sector-specific briefs or translated materials where appropriate. The regulation-making entity should ensure that the public has sufficient information to participate meaningfully. This includes implementing measures to ensure persons with disabilities can access the proposed regulations.

2. Simple and accessible structures and processes.

The regulation-making entity should select participation methods that are practical for the affected stakeholders. Depending on the subject matter of the proposed regulations, this may include written submissions, in-person forums, virtual meetings, county-level consultations, sector roundtables, public barazas, radio announcements, newspaper notices, website publication and targeted notices to known affected groups. Accessibility also requires reasonable timelines, clear submission channels, contact persons, and venues or platforms that affected persons can realistically use. For in-person forums, the regulation-making entity should ensure that appropriate accessibility measures are in place for persons with disabilities (PWDs). Where a significant proportion of the affected persons have limited literacy, the entity should provide translation or other appropriate communication support to ensure that all persons have an equal

3. Opportunity for balanced influence.

Public participation should not be designed merely to confirm a predetermined outcome. The regulation-making entity should invite comments before finalizing the proposed legislation to allow stakeholders to raise objections and alternatives. The regulation-making entity should consider the comments and provide justifications on why it adopts, modifies, or rejects them. The best practice is to prepare a stakeholder comments matrix that sets out the issue raised, the stakeholder who raised it, the Authority s response, and whether the proposed amendment was adopted or rejected, with reasons. This demonstrates that public participation influenced the final instrument rather than being a symbolic exercise.

Commitment to the process.

The duty to facilitate participation should be integrated into the law-making process from the outset. A regulation-making entity should prepare a public participation plan, allocate adequate time and resources and designate responsible officers or committee members to oversee the process. Public participation should not be treated as an afterthought once substantive decisions have already been made. The regulation-making entity should also be able to justify its choices regarding timelines, venues, modes of engagement and stakeholder coverage. The Courts have continuously rejected a rigid one-size-fits-all approach and ordered a process that demonstrates a genuine commitment to the constitutional value of public participation. In Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others, the Court of Appeal held that meaningful public participation requires reasonable notice, a reasonable opportunity to participate, adequate information on the purpose of the engagement and mechanisms capable of reaching the widest possible audience.

4. Inclusive and effective representation.

The regulation-making entity should identify and map all categories of persons likely to be affected by the proposed regulations, including industry or sector players, consumers, vulnerable groups, county governments, professional bodies, academia, civil society, traders, informal sector actors, and geographically dispersed communities, where relevant. It should avoid limiting consultation to the most visible or organized stakeholders if the pro posed measure affects a wider public. In Gakuru & others v Governor Kiambu County & 3 others (Petition 532 of 2013 & 12, 35, 36, 42 & 72 of 2014 & Judicial Review Miscellaneous Application 61 of 2014 (Consolidated)) [2014] KEHC 7516 (KLR) (17 April 2014) (Judgment), the High Court cautioned that public bodies must take reasonable steps to ensure that affected persons are aware of intended legislation and are given a genuine opportunity to participate. The Court observed that merely relying on limited publicity or convening a small group of participants may not satisfy the constitutional threshold, particularly where the proposed measure has significant public impact.

5. Integrity and transparency of the process.

The regulation-making entity should maintain a clear evidentiary record of the participation process. This includes notices, proof of publication, invitations, attendance registers, minutes, written submissions, recordings where available, reports of public forums, and a summary of how submissions were considered. Proper documentation enables a legislative or regulation-making entity to demonstrate when consultation occurred, who participated, what information was shared, what submissions were received and how those submissions informed the final statutory instrument. In Omogo v Energy and Petroleum Regulatory Authority & 3 others (Petition E789 of 2025) [2026] KEHC 9563 (KLR) (Constitutional and Human Rights) (1 July 2026) (Judgment), the Court emphasized that assertions of public participation are insufficient without documentary evidence demonstrating the nature, timing and extent of the consultation process. The Court upheld the Parliamentary Committee’s decision to reject the proposed regulations because the consultation process did not meet the constitutional and statutory requirements. The effect of this decision is that even when a regulatory body asserts that consultations occurred, failure to produce clear documentary evidence may expose the resulting regulations to legal challenge.

6. Capacity to engage.

The regulation-making entity should ensure that affected per sons have sufficient information and understanding to participate effectively. This may require public education, simplified summaries, translation, sector briefings, technical workshops, or additional time where the pro posed legislation is complex. Where the subject matter affects livelihoods, imposes compliance costs or regulates specialized sectors, the entity should explain the practical implications before seeking public views. The legislative or regulation-making process should conduct adequate sensitization as part of meaningful participation.

D. KEY TAKE-AWAYS FOR REGULATION-MAKING AU THORITIES

Regulation-making authorities should:

1. Conduct a stakeholder map ping to identify all persons and groups likely to be affect ed by the proposed regulations.
2. Publish notices in good time and through channels that are accessible to the affected public, including targeted notices where appropriate.
3. Make the draft regulations, explanatory memorandum and relevant supporting materials available in a clear and understandable form.
4. Provide reasonable time for review and submissions, taking into account the nature, complexity and likely impact of the proposed instrument.
5. Use diverse and inclusive engagement methods suitable for affected stakeholders such as stakeholder forums, written submissions, virtual meetings, county-level consultations and public sensitization sessions.
6. Maintain complete and accurate records of public participation including attendance records, copies of notices, proof of publication, submissions received and minutes or reports of consultation forums.
7. Prepare a stakeholder comments matrix showing the issues raised, the Authority s response, and the extent to which the comments influenced the final instrument.

E. CONCLUSION

Public participation in Kenya requires more than technical compliance with constitutional and statutory requirements. Regulation-making authorities must demonstrate that affected persons were properly informed, provided with a genuine opportunity to participate and that their views were meaningfully considered before a statutory instrument was finalized. Effective planning, inclusive consultation and proper documentation are therefore essential not only to uphold constitutional principles but also to minimize the risk of successful legal challenges against regulatory instruments.