Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR Robert Gakuru Case) as highlighting the ingredients of the kind of engagement with the people that will pass constitutional muster. It notes that inKiambu County Government & 3 Others v Robert N. Gakuru & Others[2017] eKLR, the Court of Appeal held that the people must be accorded an opportunity to participate in the legislative process, andit was upon the party that was required to comply with this constitutional requirement to prove that indeed there was compliance. 569. It is the 1st Petitioner’s submission that in the words ofNgcobo, J Doctors for Life International vs. Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 CC (the Doctors for Life Case) merely allowing public participation in the law-making process is not enough but more is required, and measures need to be taken to facilitate public participation. The 1st Petitioner concludes its arguments on the issue by asserting that, as stated in the 2016 Law Society Case, failure to comply with this obligation renders the resulting legislation invalid. 570. The 1st Petitioner’s submission on the issue of public participation is linked to the claim that there was insufficient information on NIIMS. The 1st Petitioner submits that given the significant implication of NIIMS, the national government had a duty to disclose the information in order to allow the public to understand what was being proposed, how it would affect their lives and to make an informed decision whether the proposal was reasonable or not. It is also the 1st Petitioner’s view that the National Assembly had a concomitant duty to provide the public with all the information relating to the implication of the impugned amendments, including the legal effects and the changes to be achieved through NIIMS. The case of Nairobi Law Monthly Company Limited vs The Kenya Electricity Generating Company & 2 others [2013] eKLR is cited in support of the importance of access to information, as it is at the core of the exercise and enjoyment of all other rights by citizens. Further, that the right to information does not only imply the entitlement by the citizen to information, but also imposes a duty on the State to provide information. Also cited in support of this position is the decision in the case of Mohamed Ali Baadi and others vs Attorney General & 11 Others [2018] eKLR. 571. The importance of the right to access information is further stressed by reference to the South African case of The President of RSA v M & G Media [2010] ZASCA 177, in which the Supreme Court of Appeal stated that open and transparent government and free flow of information concerning the affairs of the State is the lifeblood of democracy. Also cited is the case of RSA v. M & G Media (CCT 03/11) [2011] ZACC 32, where the Constitutional Court of South Africa noted that the constitutional guarantee of the right of access to information held by the State gives effect to “accountability, responsiveness and openness”. 572. Another decision that was cited is that of Claude-Reyes et al. vs Chile (September 19, 2006) where the InterAmerican Court of Human Rights explained that the right to access information is critical in auditing whether State actions are performed in accordance with the law. Further, that the State’s actions should be governed by the principles of disclosure and transparency in public administration, to enable its subjects to question, investigate and consider whether public functions are being performed adequately. Relying on the above decisions, the 1st Petitioner submits that the Respondents have not provided any evidence that information was ever provided to the public, especially at the stages when public views could have affected or informed the government plans on NIIMS. 573. Like the 1st Petitioner, the 2nd Petitioner also alleges non-compliance with the Constitution and the law in the enactment of the impugned amendments. Referring to the provisions of Articles 10(2)(a) and 118(1)(b) of the Constitution and Standing Order No. 127(3) of the National Assembly Standing Orders which provide for public participation in the legislative process, the 2nd Petitioner opines that these provisions essentially represent the expanded scope of our democracy to make it partly representative and partly participatory. It is its submission that these provisions have been interpreted as conferring a positive and mandatory duty on the National Assembly to take deliberate, positive and genuine measures to facilitate meaningful, informed and quality participation by ordinary citizens in its legislative processes. http://www.kenyalaw.org - Page 88/174