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Why public participation leads to quality laws

When law or decision-making is slowed, we avoid unnecessary slip-ups and duplications.

BY EDWIN MUSONYE

Allowing public participation in decision-making is an important tenet in democratic governance. Kenya’s Constitution recognises this and encourages citizens to exercise this civic liberty. However, despite achieving progress, there is need to entrench the practice further.

This can be attained by adopting a tradition of preparing green papers and white papers before embarking on a policy or lawmaking processes. As such, proponents of ideas need to be sensitised on the importance of producing pilot information of their proposed viewpoints.

Green papers announce proposals on particular issues and are meant for general discussion. These come in handy when engaging the citizenry in national dialogues that may not necessarily lead to enactment of laws, for instance, a conversation on national dress. White papers on their part announce plans to introduce a new law or regulation.

Information that provides background, descriptive aspects of the issue, appropriateness of the suggested action plan and the alternative actions, anticipated results, and the remedial measures would serve all eventual participators well. This new culture serves four useful purposes.

The motion is enriched early

Whereas the bill or proposal will pass through the normal routine and procedures, it will contain sumptuous content due to inputs from varied sources. As a result, the tabled bill presents a reputable document worth deliberating upon.

Circulating the preliminary paper delivers a public pronouncement for the intent. Minds are alerted on an upcoming deliberation. More findings come up on an idea when people think them over. There is no reason why thought processes of the potential participants should be ambushed by the unannounced surprises.

It is appreciable that every so often, some decisions are seemingly urgent and must be made as quickly as possible. Unfortunately, it is in this justification for haste that the principle of public participation is undermined.

Quality laws or policies

Most of our laws and rules are made hurriedly because they are mostly motivated by a reactionary response to a situation. Such rules are of low quality. We should start cultivating a culture of thinking ahead. The evidence of this is found in laws that are created and withdrawn or remain unenforced because they are later found impractical or untenable.

An example is the capital gains tax that was activated and deactivated severally since nobody seemed to understand it, and other provisions in the Constitution that have proved problematic such as operationalisation of the two-thirds gender rule.   

Concerns that the idea may be hijacked and killed

Historically, leaders decided unilaterally what was good for their people, and this is a major contributor to slow transition. The initiator may fear losing proprietorship of the idea, especially when members of the public come up with a more practical solution than the original one. This is because usually, legislative bills bear the names of the sponsors and they may refuse to let go of the prestige.

Moreover, a proponent of a policy may feel he is well educated or competent in the given field and therefore see no need to consult with anyone else.  A proposal may be sound from a legal viewpoint but be unsustainable from an economic perspective.  Similarly, a policy can be economically correct but psychologically untenable. For instance, the Buy Kenya Build Kenya clarion call has become just a big talk. Indeed, the practice of incorporating ideas from diverse contexts makes best results.  Kenya Law Review Commission constantly revises existing laws and sifts out plentiful repetitions and obsolesces. When law or decision-making is slowed, we avoid unnecessary slip-ups such as duplications. The focus then switches from making quantity legislation to making quality legislation. When people are engaged from the onset, they develop a sense of ownership for the idea.  This is vital for public governance and democracy even though it may serve less value in private sphere.

Debates create knowledge

Vigorous debates create pools of knowledge that can be relied upon or referred to in future similar situations and this generates documentation and records. In Parliament for example, records are captured through the Hansard.  However, partisan interests dilute objectivity on most issues. When sovereignty is vested in the people, they should be allowed to debate and come to a consensus. Their elected representatives should simply formalise those decisions in Acts of Parliament.

But all is not grim. Public inquiries such as the Truth, Justice and Reconciliation Commission received quality input from the citizenry. Despite all the countering views, floating new ideas formally in a structured, painstaking, and inclusive manner is the way to go.

Edwin Musonye is a freelance writer based in Nairobi.  Email: edwin@documentpoint.co.ke

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