Why Parliament must craft law to end disputes on engagement of citizens
National
By
Kamau Muthoni
| Oct 25, 2025
Two years ago, a group led by the now President William Ruto’s economic advisor, David Ndii, challenged President Uhuru Kenyatta and then handshake partner former premier Raila Odinga’s bid to amend the Constitution.
Ndii who was then an activist alongside other spirited litigants, including Busia Senator Okiya Omtatah, managed to convince the Supreme Court that the Building Bridges Initiative (BBI) was unconstitutional.
Among the 17 questions raised before the Supreme Court was the delimitation of constituencies and whether there was public participation.
Although the parties moved on, Kenyatta retired, Ndii got to government among others, the solution to end incessant cases on public participation still lies on the fine print of the BBI judgment, perhaps forgotten by many who either watched, listened or read about the case.
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Public participation was the only issue that appeared more than once in the 17 questions. In fact, three questions revolved around whether the BBI proponents had conducted public participation.
Judges were also asked what were the guiding principles for public participation. Each judge delivered own judgment.
However, Chief Justice Martha Koome’s observations could help the country resolve this recurring issue.
In her obiter dictum (by-the-way remarks), the CJ noted that the solution lies with Parliament.
According to her, Kenya has no law to guide public participation. She observed that there is a need for the August House to come up with law that guides and regulates the exercise.
The senior judge observed that although three Bills had previously been tabled before the two Houses of Parliament, there is nothing that came out of it.
No legislative framework
“I need to point out in obiter that there is a need for Parliament to enact a legislative framework to guide and regulate the process of public participation. While the Constitution sets a broad normative obligation for public participation in various governance processes, there is no legislative framework regulating how this obligation ought to be implemented,” said Justice Koome.
She observed that although the Constitution provided for public participation as one of the principles, Parliament should come up with modalities and sites for deepening public involvement and participation in the law-making and policy-making processes.
Koome’s perspective on public participation was enumerated by her finding that important issues, such as boundary demands, deepened public participation to secure that such processes are not carried through stealth and subterfuge.
Deputy Chief Justice Philomena Mwilu stated that the lack of a prescribed legal framework for public participation is not an excuse for not conducting one.