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ANNEXURE GB-02
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REPUBLIC OF KENYA
REME COURT OF KENYA AT NAIROBI
PETITION NO. E031 OF 2024
WITH PETITION NOS. E032 AND E033 OF 2024

BETWEEN

THE CABINET SECRETARY FOR THE NATIONAL

TREASURY AND PLANNING ............................................... 1 ST APPELLANT
THE ATTORNEY-GENERAL .............................................. 2 ND APPELLANT
THE NATIONAL ASSEMBLY .............................................. 3 RD APPELLANT
THE SPEAKER OF THE NATIONAL ASSEMBLY ............... 4 TH APPELLANT 10
KENYA REVENUE AUTHORITY……………………..…………5 TH APPELLANT

AND

OKIYA OMTATAH OKOITI .............................................. 1 ST RESPONDENT

ELIUD KARANJA MATINDI ........................................... 2 ND RESPONDENT
MICHAEL KOJO OTIENO ............................................... 3 RD RESPONDENT
BENSON ODIWUOR OTIENO ........................................ 4 TH RESPONDENT
BLAIR ANGIMA OIGORO ............................................... 5 TH RESPONDENT
VICTOR OKUNA ............................................................. 6 TH RESPONDENT
FLORENCE KANYUA LICHORO ..................................... 7 TH RESPONDENT
DANIEL OTIENO ILA ..................................................... 8 TH RESPONDENT
RONE ACHOKI HUSSEIN ............................................... 9 TH RESPONDENT 20
HON. SENATOR EDDY GICHERU OKETCH ................. 10 TH RESPONDENT
CLEMENT EDWARD ONYANGO .................................. 11 TH RESPONDENT
PAUL SAOKE ................................................................. 12 TH RESPONDENT
LAW SOCIETY OF KENYA ............................................. 13 TH RESPONDENT
AZIMIO LA UMOJA ONE KENYA COALITION PARTY . 14 TH RESPONDENT
KENYA HUMAN RIGHTS COMMISSION ...................... 15 TH RESPONDENT
KATIBA INSTITUTE ..................................................... 16 TH RESPONDENT
THE INSTITUTE FOR SOCIAL
ACCOUNTABILITY (TISA) ............................................. 17 TH RESPONDENT
TRANSPARENCY INTERNATIONAL KENYA ............... 18 TH RESPONDENT
INTERNATIONAL COMMISSION OF 30
JURIST-KENYA (ICJ) KENYA ......................................... 19 TH RESPONDENT
SIASA PLACE ................................................................ 20 TH RESPONDENT
TRIBELESS YOUTH ....................................................... 21 ST RESPONDENT
AFRICA CENTER FOR OPEN GOVERNANCE .............. 22 ND RESPONDENT
ROBERT GATHOGO KAMWARA ................................... 23 RD RESPONDENT
TRADE UNIONS CONGRESS OF KENYA ...................... 24 TH RESPONDENT
KENYA MEDICAL PRACTITIONERS PHARMACISTS
AND DENTIST UNION.................................................. 25 TH RESPONDENT
KENYA NATIONAL UNION OF NURSES ...................... 26 TH RESPONDENT
KENYA UNION OF CLINICAL OFFICERS ..................... 27 TH RESPONDENT
FREDRICK ONYANGO OGOLA ..................................... 28 TH RESPONDENT
NICHOLAS KOMBE ....................................................... 29 TH RESPONDENT 40
WHITNEY GACHERI MICHENI ................................... 30 TH RESPONDENT
STANSLOUS ALUSIOLA ................................................. 31 ST RESPONDENT
HERIMA CHAO MWASHIGADI ..................................... 32 ND RESPONDENT
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DENNIS WENDO .......................................................... 33 RD RESPONDENT

MERCY NABWIRE ........................................................ 34 TH RESPONDENT
BENARD OKELO .......................................................... 35 TH RESPONDENT
NANCY OTIENO .......................................................... 36 TH RESPONDENT
MOHAMED B. DUB ...................................................... 37 TH RESPONDENT
UNIVERSAL CORPORATION LIMITED ....................... 38 TH RESPONDENT
COSMOS LIMITED ....................................................... 39 TH RESPONDENT
ELYS CHEMICAL INDUSTRIES ..................................... 40 THRESPONDENT
REGAL PHARMACEUTICALS ........................................ 41 ST RESPONDENT
BETA HEALTHCARE LIMITED ..................................... 42 ND RESPONDENT 10
DAWA LIMITED ............................................................ 43 RD RESPONDENT
MEDISEL KENYA LIMITED ......................................... 44 TH RESPONDENT
MEDIVET PRODUCTS LIMITED ................................... 45 TH RESPONDENT
LAB AND ALLIED LIMITED ......................................... 46 TH RESPONDENT
BIOPHARM LIMITED ................................................... 47 TH RESPONDENT
BIODEAL LABORATORIES LIMITED ........................... 48 TH RESPONDENT
ZAIN PHARMA LIMITED .............................................. 49 TH RESPONDENT
THE SPEAKER OF THE SENATE ................................. 50 TH RESPONDENT
CONSUMERS FEDERATION OF KENYA (COFEK) ........ 51 ST RESPONDENT
KENYA EXPORT FLORICULTURE, 20
HORTICULTURE, AND ALLIED WORKERS UNION .... 52 ND RESPONDENT
DR. MAURICE JUMAH OKUMU………………….....………53 RD RESPONDENT

AND

GAUTAM BHATIA ……………...……..APPLICANT/INTENDED AMICUS CURIAE

AMICUS CURAE BRIEF

1. The Applicant, Gautam Bhatia, seeks leave to intervene as amicus curae in these Petitions.

2. This Amicus Brief is limited to addressing two constitutional questions, which have arisen

in this case. These are:

a. Whether the national value of public participation entails an obligation upon State

organs to give reasons in the event that they choose to reject the suggestions that 30

have emanated from the public?

b. If, after one round of public participation, a Bill is substantively amended by the

National Assembly, whether there is an obligation to subject the amended

provisions and/or new provisions to further public participation?

3. On both these issues, the Honourable Court of Appeal – whose judgment is impugned in

these proceedings – answered in the affirmative. This amicus brief respectfully supports
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the decision and reasoning of the Honourable Court of Appeal on both points, and

endeavours to substantiate why the Honourable Court of Appeal’s understanding of the

scope of public participation is correct, and deserves to be upheld.

4. At the outset, the Applicant respectfully submits that this case turns upon the reason why

public participation has been given pride of place in the 2010 Constitution of Kenya, as

one of the integral elements of Article 10.

5. Traditionally, constitutional democracy proceeded on the assumption that the role of the

People was limited to periodically choosing their representatives, and authorising them to

act on their behalf for a fixed period of time. Beyond elections, the People had no role to

play; any risks of tyranny would have to be mitigated by the different organs of State (the 10

executive, legislature, and the judiciary) exercising checks and balances upon each other.

Professor Roberto Gargarella calls this the system of “internal constraints” upon State

power (Roberto Gargarella, Latin American Constitutionalism 1810 – 2010, OUP

2013).

6. More recent Constitutions, however, are based upon the insight that a democracy where

the People’s involvement is restricted only to periodic elections is too shallow, and often

ends up inverting the relationship between the ruler and the ruled. There must be forms

of accountability and participation that are direct and continuing: in other words, the

People must be involved in processes of constitutional change, of law-making, and of

administrative action (see Article 240, Constitution of the Plurinational State of 20

Bolivia 2009 and Article 61(6), Constitution of Ecuador, 2008 (right to recall). For a

brief discussion, see Jonas Wolff, ‘New Constitutions and the Transformation of

Democracy in Bolivia and Ecuador’ in New Constitutionalism in Latin America:

Promises and Practices (Almot Schilling-Vacaflor and Detlef Nolte eds., Routledge

2012) 183, 186; see also Article 1(3)(a), Constitution of California (right to instruct);

Article 395(3) & 398, Constitution of Ecuador 2008 (right to public participation).
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For the most recent interpretation of these clauses, see Sentencia No. 1149-19-

JP/21, Constitutional Court of Ecuador).

7. The principle of “public participation” is one of the crucial vehicles through which to

achieve this (for comparative accounts, see Cleide Calgaro, ‘Latin American

Constitutionalism: Comparative Law Study on Popular Participation for Urban

Land Planning’ (2023) 15(1) Rev. Dir. Cid., Rio de Janeiro 237; Juan C. Herrera,

‘Judicial Dialogue and Transformative Constitutionalism in Latin America: the

Case of Indigenous Peoples and Afro-descendants,’ (2019) 43 Revista Derecho del

Estado 191).

8. Public participation – which is a form of direct democracy – must therefore be understood 10

not as opposed to representative democracy, or a competing source of legitimacy, but as

complementary to representative democracy; among other things, well-functioning public

participation ensures that representatives are responsive and accountable to the People whom

they represent (see Carole Pateman, Participation and Democratic Theory (Harvard

University Press 1970); Benjamin Barber, Strong Democracy: Participatory Politics

for a New Age (University of California Press 1984); and the historical account in

Jeffrey D. Hilmer, ‘The State of Participatory Democratic Theory’ (2010) 32(1) New

Political Science 43).

9. For example, in Doctors for Life International v Speaker of the National Assembly,

2006 (12) BCLR 1399 (CC), the South African Constitutional Court noted that: 20

“Elections are of necessity periodical. Accountability, responsiveness and

openness, on the other hand, are by their very nature ubiquitous and timeless. They

are constants of our democracy, to be ceaselessly asserted in relation to ongoing

legislative and other activities of government.” (concurring opinion of Sachs J.,

para 230)
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10. These considerations weigh particularly heavily in the case of Kenya, where it is well-

established that:

a. The old constitutional regime was designed to exclude the People from meaningful

participation and involvement in public decisions; as Murunga et al note, “the

architecture of power created by the pre-2010 constitution made the effective

practice of plural politics impossible and prevented the country’s transition from

an imperial presidency to a constitutional democracy.” Godwin R. Murunga,

Duncan Okello, and Anders Sjogren, ‘Towards a New Constitutional Order

in Kenya: Introduction” in Kenya: The Struggle for a New Constitutional

Order, supra, 1, 1 (emphasis supplied)). 10

b. Public participation was one of the fundamental demands at the heart of the

movement for a new constitutional settlement; indeed, it is a matter of historical

record that one of the reasons for the rejection of the Wako Draft was that

exclusion of public participation, and an attempt to impose a top-down

Constitution on the People (Beth E. Whitaker and Jason Giersh, ‘Voting on a

Constitution: Implications for Democracy in Kenya’ (2009) 27(1) Journal of

Contemporary African Studies 1).

c. Public participation was fundamental to the process through which the 2010

Constitution of Kenya – as well as its draft predecessors, in particular, the Bomas

Draft – were created (see Charles O. Oyaya and Nana K. Poku, The Making 20

of the Constitution of Kenya: A Century of Struggle and the Future of

Constitutionalism (Routledge 2018) 177; Makau wa Mutua, Kenya’s Quest

for Democracy: Taming Leviathan (Lynne Rennier 2008); Christina Murray,

‘Making and Remaking Kenya’s Constitution’ in Constitution Makers on

Constitution Making (Tom Ginsburg and Sumit Bisarya eds., CUP 2022);

Jill Cottrell and Yash Ghai, ‘Constitution Making and Democratisation in

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Kenya (2000–2005),’ (2007) 14(1) Democratisation 1; Jacob M. Mati,

‘Antionomies in the Struggle for the Transformation of the Kenyan

Constitution (1990-2010),’ (2013) 31(2) Journal of Contemporary African

Studies 235; Stephanie Diepeveen, ‘“The Kenyas we don’t want”: Popular

Thought Over Constitutional Review in Kenya, 2002,’ (2010) 48(2) 231;

CKRC Final Report, Ch. 4.). An example of this is the fact that the CKRC Final

Report contained an entire chapter on public participation. In the words of Oyaya

and Poku:

The process started with a popular demand for constitutional reform

followed by multi-stakeholder negotiations and agreements on the 10

constitution review principles, objects and framework; extensive civic

education and media campaigns; countrywide consultation on the views

directly expressed by the people; drafting, public debate and expert audit

of the Draft Constitution; broad based debate, consideration and adoption

of the Draft Constitution National Constitutional Conference (‘NCC’); and

holding of a national referendum on the Proposed New Constitution of

Kenya (Oyaya and Poku, The Making of the Constitution of Kenya,

supra).

11. The 2010 Constitution of Kenya recognises this rich and layered history in treating public

participation as one of the national values and principles underpinning the constitutional 20

order. In In the Matter of the Principle of Gender Representation in the National

Assembly and the Senate [2012] eKLR, para 54, this Hon’ble Court highlighted the

importance of Article 10 values in the following way:

“… declarations of general principles and statements of policy. Such principles or

policy declarations signify a value system, an ethos, a culture, or a political

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environment within which the citizens aspire to conduct their affairs and to interact

among themselves and with their public institutions.”

12. It is therefore important to craft a doctrine of public participation that ensures that it is

meaningful, that respects the history of how Kenyans struggled for and gave to themselves

a new Constitution, and which is therefore not simply a check-box or information-

dissemination exercise. This is a task that falls to the judiciary.

13. In its interpretation of the public participation provisions under the Kenyan Constitution,

this Honourable Court has always been guided by the overarching principle that if the right

to public participation means anything, it means that the People must be treated as active

agents in shaping decisions about public power, and not as passive receptacles, whose role 10

is simply to affirm decisions that have already been taken by public authorities. In the

landmark BBI Judgment, it was this principle that guided the interpretation of the

Honourable High Court, the Honourable Court of Appeal, and this Honourable Court, in

interpreting the scope and ambit of Article 257 of the Constitution. This Honourable

Court noted, in particular, the extent and depth of public participation envisaged under

Article 257 of the Constitution (including elements of civic education and engagement),

which were not simply limited to the final, ratifying referendum at the end of the process.

14. Keeping in mind the above principle, when it comes to the question of public participation

in the legislative process (the issue in this case), the following elements, it is respectfully
20
submitted, can serve as doctrinal signposts:

a. The Constitution’s commitment to representative democracy means that the

results of public participation are not binding upon the representatives;

b. However, that being the case, it becomes particularly easy for legislators to reduce

the public participation requirement to a cipher, by complying with the formal

processes for public participation, but – in substance – ignoring the public’s views

entirely;
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c. It is therefore crucial for there to exist certain built-in procedural and substantive

safeguards that ensure meaningful engagement;

d. These safeguards ought not to be of such a nature that the legislative process is

entirely stymied, or brought to a near-complete halt.

15. It is respectfully submitted that the two principles adopted by the Court of Appeal – the

obligation to give reasons, and further public participation upon substantive amendments

– strike an excellent balance between the representative and direct democratic elements of

the Constitution, and ensure that neither works to frustrate the other. On an application of

the four signposts highlighted in the previous paragraph, the Court of Appeal’s two

principles emerge as necessary elements of a meaningful right to public participation. 10

I. The Obligation to Give Reasons

16. It is respectfully submitted that the obligation to give reasons is a vital safeguard that

ensures that public participation is meaningful. Given – as noted above – the universally

agreed-upon position that the results of public participation cannot be binding on the

legislature, the challenge is to ensure that the legislature nonetheless meaningfully engages with

people’s views, and does not simply record them as a pro-forma exercise, while ignoring

them in substance. Indeed, this was one of the concerns expressed by the dissenting

judgments in the South African Constitutional Court’s judgment in Doctors for Life

International vs Speaker of the National Assembly 2006 (12) BCLR 1399 (CC).

17. This has also been a perennial concern – and a source of conflict – around the public 20

participation guarantees in Latin American Constitutions. State organs have repeatedly

tried to get around their obligations by interpreting public participation guarantees as

obligating them to do nothing more than inform the public about a project/policy. This,

however, treats the “public” in public participation as passive recipients of information,

rather than agency-bearing participants in shaping the form of policy or legislation (see
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Thea Riofrancos, Resource Radicals: From Petro-Nationalism to Post-

Extractivism in Ecuador).

18. The obligation to give reasons rejects the idea of the People as passive, and ensures that

their views are substantively engaged with. The obligation requires a form of public

justification, which carries the following crucial benefits:

a. The legislature’s reasons must be universally applicable, and cannot be biased or

motivated. Requiring the legislature to disclose these reasons publicly lessens the

possibility of bias or sectional interests. For example, suppose that there is a

proposal to build a pipeline through indigenous land, and during public

participation, it is demonstrated that there exists an alternative, equally viable route 10

that does not destroy the indigenous community and ecosystem. The obligation to

give reasons will require the relevant State organ to meaningfully engage with this

objection, and – if it is rejecting it – to provide a universally applicable reason; it will

rule out, for example, sectoral interests such as corporate profitability. In essence,

therefore, the obligation to give reasons will improve the deliberative quality of

legislation, before it is finally enacted.

b. The obligation to give reasons mitigates the power imbalance between the

representatives and the People, and provides one barrier against arbitrary or mala

fide decision-making.

c. The obligation to give reasons increases transparency and accountability in 20

decision-making, which is the purpose of the public participation guarantee.

d. A guarantee of public participation would be meaningless if the voices of the

People were simply ignored. The only way of ensuring that these voices have been

reasonably engaged with – and not ignored – is through the obligation to give

reasons.
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19. It may be objected that the obligation to give reasons will slow down the legislative process.

The brief answer to this is that the obligation can be moulded accordingly: there need be

no requirement for the legislature to respond individually to a thousand public

comments/submissions. Public participation around a law will invariably bring out certain

core themes that concern the People. Legislative assistants can then synthesise the body

of public responses into these themes, which can be dealt with collectively (and subject to

judicial review). This, therefore, need not slow down the work of the legislature to any

appreciable degree.

20. Indeed, the obligation to give reasons is the legislative equivalent of the long-established

doctrine of meaningful engagement in eviction and right-to-housing cases, which has been 10

upheld by the Kenyan judiciary in cases such as Mitu-Bell and Satrose Ayuma. As with

meaningful engagement, the purpose of the obligation to give reasons is to ensure that

public participation is not reduced to a cipher, by powerful political forces.

21. The obligation to give reasons is also familiar to constitutional jurisprudence in the form

of the well-established doctrine of proportionality, that the Kenyan Courts use to assess the

constitutionality of rights-infringing legislation. One prong of the doctrine is the “least

restrictive alternative” standard, which requires – inter alia – a demonstration that there are

no alternative measures that would substantially meet the State’s goals, but which are less

restrictive in nature. The “least restrictive alternative” test thus requires a setting out of

various alternatives, and a justification for why one particular alternative has been chosen 20

by the State, and others rejected.

22. Finally, it is respectfully submitted that the obligation to give reasons is part of the “culture

of justification,” an integral element of transformative constitutionalism.

II. Amendments
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23. One of the most straightforward ways for legislators to get around the public participation

requirement is to simply alter, overhaul, or substantively amend a bill after it has gone

through public participation – but the changes have nothing to do with public

participation. Rather, what exists is a radically different – even new – bill, that can now be

passed without hassle.

24. It is respectfully submitted that the Court of Appeal has plugged this gap by requiring that

substantive amendments must be sent for a second round of public participation.

25. The stress upon the word “substantive” strikes the balance between meaningful public

participation, and the demands of representative government. Trivial or clerical

amendments do not need to be put through another round of public participation; nor do 10

amendments that have been made in response to the results of public participation. Once

again, therefore, there ought to be no fear that operating these safeguards will bring

legislation to a grinding halt.

III. Conclusion

26. It is respectfully submitted that this Honourable Court is no stranger to interpreting the

Constitution in a manner to preserve and safeguard public participation. As noted above,

this Honourable Court’s decision in The BBI Case that the President had no authority to

initiate a “popular initiative” for constitutional amendments is an apposite example: while

there was no express bar upon the President under Article 257 of the Constitution, the

Court found an implied bar that had to do with ensuring that public participation was not 20

co-opted by State organs, and remained meaningful. Indeed, the observations of Chief

Justice Koome in that judgment are of particular importance: namely that any significant

process of constitutional change must be such that “engenders inclusivity and participation

by the people in deliberations over the merits of the proposed amendments” (The

Hon’ble Attorney General and Ors vs David Ndii and Ors (Supreme Court) (BBI
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Case) (concurring opinion of Koome CJ, para 205). It is respectfully submitted that the

same logic applies to public participation in the legislative process.

27. Indeed, it is respectfully submitted that at the heart of the BBI Case was this Honourable

Court’s acknowledgement that the People are not passive agents in the processes of

constitutional change, but active agents; the exclusion of the President was precisely in order

to avoid a top-down imposition of constitutional change upon the People. This is the lesson

from the history of the process that led up to the framing of the 2010 Constitution.

28. In this case, as well, this Court is faced with an issue of how to interpret the public

participation guarantee in a manner that it remains meaningful, and is not reduced to a

cipher, involves the People’s active agency, and respects the origins of the 2010 10

Constitution. It is respectfully submitted that the Court of Appeal’s judgment has secured

the People’s agency in the process of public participation, without undermining the legitimacy

of representative government.

29. Indeed, these two dimensions of public participation, if implemented, will cast only a

minuscule additional burden upon representative organs. However, without these two

dimensions, representative organs will be able to negate public participation – and the

direct democratic parts of the Constitution – in practice. It is respectfully submitted that

this Hon’ble Court ought to lean against an interpretation that would undermine either the

Constitution’s commitment to representative democracy, or its commitment to direct

democratic elements, drawn from Kenya’s own unique history of public participation. 20

30. This Amicus Brief, therefore, joins these proceedings in support of the Court of Appeal’s

judgment, and requests this Hon’ble Court to find that:

a. There is an obligation upon State organs to give reasons for rejecting the results of

a public participation process. This obligation need not extend to every single

comment received, but the requisite State organ is free to synthesise different

questions, and to respond thematically. This is, of course, subject to judicial review.
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b. If a bill has received substantive alterations, the amended portions must have a

second round of public participation before the publication of the Bill.

Dated at Nairobi this 21st Day of August 2024

G.B. BOSIRE & COMPANY ADVOCATES (GBB)

ADVOCATES FOR THE INTENDED AMICUS CURIAE/APPLICANT
Drawn and filed by:
G. B. Bosire and Company Advocates (GBB)
10

To be served upon:
All the Parties.