By Hilda Mulwa
The enactment of the 2010 Constitution marked a watershed moment in Kenya’s democratic evolution. At its heart lies the promise of inclusive governance, anchored in Article 1 of the Constitution which declares that all sovereign power belongs to the people. Enshrined under Article 10 as a binding national value, the principle of public participation signifies a fundamental shift from elite-driven governance to citizen-centered constitutionalism. This is not a symbolic declaration; it is a substantive, indispensable and enforceable constitutional tenet. However, recent jurisprudence of the Supreme Court raises serious concerns about the Court’s fidelity to that ideal.
In its earlier years, the Supreme Court of Kenya adopted a robust interpretive approach to this principle, reinforcing the idea that public participation is a justiciable right rather than a procedural nicety. Cases like Communications Commission of Kenya v Royal Media Services Ltd & 5 others (2014) (Digital Migration case), the National Land Commission Advisory Opinion (2015) and British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health (2019), just to mention a few, underpinned the Supreme Court’s principled and progressive stance on Article 10 of the Constitution. However, recent jurisprudence, as noted in the Court’s recent Finance Bill 2024 decision (Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others [2024]), suggests a potential retreat-a doctrinal backslide that risks diluting a core pillar of Kenya’s constitutional architecture.
I. The Promise of Article 10
Public participation is not merely a technical requirement, rather, it is the mechanism through which the citizenry exercise oversight and shapes public policy. Article 10 of the Constitution lists it as one of the national values and principles of governance. Crucially, these values bind all State organs and public officers at all levels whenever they implement policy, enact legislation or interpret the law.
In Communications Commission of Kenya v Royal Media Services Ltd & 5 others (2014), the Court gave one of its earliest authoritative interpretations of Article 10, holding that national values, including public participation, are peremptory, binding, and immediately enforceable. The Court adopted an expansive view of public participation as a living constitutional principle that demands qualitative depth and genuine engagement, not mere procedural box-ticking.
This interpretive approach was later fortified in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health (2019), where the Court adopted a nine-pronged test for assessing the adequacy of public participation. Among the key elements were: clarity of the subject matter, accessibility of the participatory process, inclusiveness, reasonable notice and a demonstrable commitment to consider public views. The Court affirmed that Article 10 values are not merely aspirational or symbolic, but impose real, enforceable duties on State organs and public officers, insisting that public participation was to be “meaningful, purposive, and not illusory.”
The same line of reasoning was also applied in cases such as the Sonko v County Assembly of Nairobi City & 11 others [2022] and Member of Parliament Balambala Constituency v Abdi & 7 others [2023] where the Supreme Court reaffirmed the integral role of public participation in decision-making processes, ranging from legislative enactment to political accountability mechanisms. This doctrinal trajectory was consistent with the constitutional project of transformative constitutionalism—a shift from a culture of authority to a culture of justification, where all exercises of public power must be accountable and reasoned.
II. The 2024 Finance Act Decision: A Jurisprudential Shift?
The Supreme Court’s recent pronouncement in Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others [2024] KESC 57 (KLR) marks a notable departure from this trajectory and the prevailing jurisprudence on public participation. One of the core questions before the Court was whether amendments introduced after a public participation exercise necessitate a fresh round of participation and/or public engagement. The Court held that only substantive amendments warrant renewed participation but only where such amendments cannot be reasonably traced to issues or views raised during the initial public consultation process. Summarily, the Court was of the view that Parliament is not obligated to undertake fresh public participation for amendments that arise from or are connected to earlier public submissions, noting that imposing such a requirement could unnecessarily impede the legislative process and delay the enactment of critical laws.
This position is deeply problematic on several fronts. First, the Court introduced a vague and subjective standard of “traceability” which allows the Legislature or Executive to determine whether an amendment is sufficiently related to prior public input. This opens the door to manipulation and post hoc rationalization. If amendments can be retroactively justified by loosely linking them to earlier input, what stops Parliament from introducing radical changes at the eleventh hour under the guise of procedural continuity?
Second, the Court’s approach effectively undermines the rigorous standard it had set in the British American Tobacco case where the Supreme Court rejected any cosmetic or illusory version of public participation and insisted that every stage of policymaking that affects the public must be subjected to participatory safeguards. The Finance Act 2023 decision deviates from this, giving Parliament a wide berth to introduce substantive provisions without renewed civic engagement, which in turn undermines the transparency and accountability the 2010 Constitution seeks to entrench.
Moreover, the Court held that there is no constitutional obligation to provide reasons for rejecting public views. This assertion flies in the face of a growing body of Kenyan and comparative jurisprudence which insists on a culture of justification; an interpretive framework in which all exercises of public power must be reasoned, transparent, and responsive. The Court of Appeal in its judgment, borrowed from Etienne Mureinik’s seminal idea of transitioning from a “culture of authority” to a “culture of justification.” It correctly emphasized that insulating Parliament from the duty to explain why public submissions were disregarded risks rendering public participation hollow. The South African Constitutional Court has similarly held in Mogale and Others v Speaker of the National Assembly [2023], that failure to respond to public views compromises constitutional accountability.
III. A Worrying Trend of Judicial Deference
What is emerging is a disturbing pattern: judicial retreat disguised as prudence. The Supreme Court’s deviation from its earlier, progressive stance on public participation and adopting a deferential approach could end up giving Parliament and the Executive wide latitude in matters of constitutional compliance, thereby having grave implications for Kenya’s constitutional democracy. Such deferential posture towards Parliament and the Executive especially where core constitutional obligations are concerned risks the following:
- Reducing public participation to a box-ticking formality, undermining the legitimacy of enacted laws and policies;
- Encouraging circumvention of participatory requirements through strategic timing, such as during fast-tracked or “time-bound” legislative processes like finance bills;
- Eroding public trust, by implicitly endorsing opacity and executive dominance over civic involvement.
It is notable that in rationalizing its position, the Supreme Court invoked the time-sensitive nature of the Finance Bill process. Yet, as the South African Constitutional Court observed in Steel and Engineering Industries Federation v National Energy Regulator [2023], administrative inconvenience or legislative urgency cannot override express constitutional commands. Expediency does not excuse constitutional non-compliance. The Kenyan High Court had also warned against this temptation in International Centre for Policy and Conflict v Attorney General & 2 Others [2014] eKLR, where it cautioned that courts must not allow the Constitution to be twisted to suit temporary convenience. To do so is to invite impunity.
IV. Reclaiming Constitutional Fidelity
Kenya’s constitutional framework Articles 1 and 10 demands that public participation must be both inclusive and consequential. Courts have a solemn obligation to uphold these principles without compromise, especially where institutional convenience is deployed to sidestep accountability. To accept less is to regress into a pre-2010 legal order, where state power operated unchecked and citizens were relegated to the periphery of governance.
Perhaps most alarming is the Supreme Court’s recent insinuation in the Finance Bill Decision, that the values in Article 10 are “abstract principles” with no direct enforceability. This contradicts its own earlier pronouncements in the Communications Commission of Kenya and British American Tobacco cases, where it categorically held that Article 10 is binding and justiciable. The Supreme Court must, with clarity and candor, acknowledge when it is departing from its earlier positions. Silent departures—sub silentio overrulings—undermine legal certainty, judicial integrity, and public confidence in the apex court. In constitutional interpretation especially of foundational values, consistency and transparency are as important as fidelity to the text.
V. Conclusion: Constitutional Vigilance Must Be Reclaimed
The 2010 Constitution reimagined Kenya as a participatory democracy, one where all public power is exercised in trust for the people. At the heart of this vision lies public participation—not as a procedural formality, but as a substantive, constitutional command. The judiciary, and in particular the Supreme Court, is not merely a neutral arbiter of legal disputes; it is the ultimate guardian of this constitutional order.
Recent jurisprudence, however, signals a worrying drift towards deference and formalism, threatening to reduce public participation to a hollow ritual devoid of genuine engagement, accountability, or transparency. Such an approach undermines the transformative promise of the Constitution and betrays the foundational principle that governance must remain open, inclusive, and citizen-driven. The Supreme Court must urgently reclaim its role in breathing life into Article 10 by subjecting government action to meaningful scrutiny and reaffirming public participation as a living, enforceable, and non-negotiable pillar of Kenya’s democratic framework. To do otherwise is to erode the very constitutional project that Kenyans so resolutely endorsed in 2010.