Public participation entails a two-way communication or consultative process by which input is sought generally or in a particular administrative field from the stakeholders, with the aim of the final decision being inclusive and adequately informed through the effective incorporation of others’ perspectives. Apart from being a symbol of democratic legitimacy, involving members of the public ensures that public service delivery is carried out to meet the interests of the affected people, who have a right to participate in any issue likely to affect their lives and property. In the legal and ethical sense, public participation would involve the public in all stages of policy direction, development, and drafting of acts and regulations or by-laws, implementation, and establishment of monitoring and review mechanisms for any drafted policy or law. These governance principles need to be applied in different stages of government transactions involving foreign private companies, either at the procurement stage, during the construction phase, or when the project begins to generate income. Public participation has at its core the quest to involve members of the public in a decision-making process to achieve the following objectives: improved decision-making; the creation of a sense of ownership of a decision to be taken among those who may be affected by such action; and to enhance community reflections, analyses, and resolutions relating to specific matters by deliberations within the community to resolve conflicts that may not be very clear at times. The right to participate is enshrined in international, regional, and country-specific human rights documents. The effects of public participation include: advocacy for fair representation in participation in political and administrative decision-making processes; reducing the number of persons affected by a decision to the minimum required by good judgment and implementation; reducing service challenges and abuses by policymakers; and increasing public respect for decision-makers, thus limiting citizen non-cooperation with projects.
Kenyan Laws of Public Procurement and Public Participation Requirements
The Public Procurement and Disposal Act is the principal Act that establishes the regulatory framework for public procurement in Kenya. The Act is used to guide the Government and Public Procuring Entities (PPIs) in the undertaking of their functions of planning, budgeting, advertising, sourcing, and contracting for works, services, and supplies, as well as the disposal of unserviceable or surplus stores and stores other than real property. The Act and its respective regulations introduced legal requirements in the procurement processes meant to ensure public participation in government procurement in Kenya. Guided by the principles of good governance, the procurement legal framework in Kenya calls for open and fair competition and the inclusion of all those who take part in procurement so that they understand the government procurement processes.
The laws are permissible in Kenya because of constitutional provisions that ensure stakeholder engagement in governance processes, including procurement. Article 35 of the Constitution of Kenya and the Access to Information Act provide for the right of access to information, which underpins good governance and accountable decision-making, a key issue in dealing with foreign private companies. To ensure fair competition and protect the public interest, Kenyan laws categorize procurement projects into different classes and have different public participation requirements. Whereas public participation is a fundamental requirement for any type of procurement, contracts that intend to procure goods, services, or works from a foreign company require communication of that fact to the public, inviting comments from concerned persons before contract award. Various government agencies with roles in procurement are expected to conduct procurement while observing public participation requirements as provided in the legislation. These laws are good on paper because they affirm transparency, accountability, as well as compliance with global requirements. In practice, however, there have been several weaknesses, inefficiencies, gaps, and challenges in the enforcement of the existing laws. Many procurements that do not meet the legal requirements of public participation have been undertaken in Kenya.
The procurement laws of Kenya, mainly the Public Procurement and Disposal Act and the Public Procurement and Disposal Regulations, introduced a legal framework containing provisions meant to ensure stakeholder engagement during procurement. Part VI of the Act outlines procurement proceedings, and the regulations give due regard to public participation in the procurement processes. Concerning the values and procedures, the PPD Act should consider the special issues in the procurement of goods, works, or services from an international firm that does not have a place of business in Kenya or a local agent, as well as procurement of any goods, services, or works. Further, the authority responsible for similar functions as a procuring entity under the Act may apply provisions for procurement with public participation procedures that are less onerous for a period not exceeding three years after the date of independence to the Authority. The Public Procurement Regulatory Authority has been tasked with developing a public participation framework in Kenya. Though the framework contains a policy and principles of public participation, standardization of procedures to be adhered to during public participation is still ongoing. Another entity entrusted with a role in public participation is the National Treasury of the Republic of Kenya. It must develop public participation guidelines to ensure uniformity and standardization. Through its body mandate in the Public Finance Management Commission, public participation is to be operational by the guidelines developed and those issued by the Authority.
Challenges and Opportunities in Implementing Public Participation in Transactions with Foreign Private Companies
One of the most significant challenges in seeking public involvement in transactions with foreign private companies is the lack of awareness or knowledge about the process. Public participation might involve live or written interaction with officials and even joint decision-making. The lack of awareness about the process, or lack of access to information, in general, might deprive those who want to be involved of the possibility to engage in the process. It is worth noting that the lack of awareness is not the same as limited access to information, and it may also be linked to cultural factors such as respect and fear of government officials in some communities. As a result, the process designed to involve the public may instead inhibit the public when it does not incorporate their perspectives or when there is no appropriate feedback or response to their concerns or questions. Institutional constraints often limit effective public involvement or engagement. The government and/or the public may lack the necessary resources or facilities to facilitate the process.
The government may also lack the mandate or jurisdiction to involve the public in the specific aspects of the issues that the public seeks to address. Despite the obstacles in facilitating or implementing public involvement, in certain contexts or for certain projects, some good practices can make it easier for governments to involve the public in the process, particularly around the use of technology and the internet. In some countries, the use of social media is proving popular and is seen as a way to facilitate dialogue and enhance public engagement. In other cases, governments can actively involve the public in the decision-making process. There are opportunities offered by best practices, and national laws requiring public participation. Regular training and capacity-building activities could be undertaken for stakeholder groups to assist them in better understanding the processes. This might overcome many challenges associated with the lack of awareness or knowledge of public-private partnerships and other processes, minimize the disadvantages, and enhance the effectiveness of the process.
Best Practices and Recommendations for Enhancing Public Participation in Government Transactions
Effective is not the same thing as easy. Just as there are no one-size-fits-all solutions to every problem that may arise when working to engage stakeholders meaningfully, there are no guarantees that a given approach will be successful. Tailoring tactics to local contexts and building in ways to course-correct as needed are best practices when designing strategies for including the public. To enhance public participation in government transactions, specifically the regulation of foreign private contractors, many recommendations can be offered.
When engaging in transactions with foreign business entities, government decision-makers need to ensure that all affected or interested parties are provided with the opportunity to present valuable information or advocate for ongoing negotiations or obligations that may have the effect of a softer law. The following strategies are aimed at ensuring meaningful public participation: – Institutions should be designed to undertake their work openly, with the highest possible degree of transparency, including provision of the reasons for reaching decisions; – Decision-making bodies should ensure regular interactions with contracted business suppliers, providing regular reports back to the government and facilitating broader access to industry perspectives and expertise; – Certain procurement issues should be identified as public priorities and open for consideration and consultation, including during meetings of relevant stakeholders; – Regular opportunities for broader inter-agency and multi-stakeholder review of procurement processes, including during procurement meetings or forums.
