Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR participation was complied with in the enactment of the impugned amendments. We observe at the outset that the need to involve the public in the legislative processes is grounded in the Constitution. 611. The national values and principles of governance set out in Article 10(2) of the Constitution include democracy and participation of the people, good governance, transparency and accountability. Participation of the people in governance is therefore a constitutional imperative. In reference to the legislative process, the concept of public participation is cemented by Article 118(1) which requires Parliament to conduct its business in an open manner. Its sittings and those of its committees are to be opened to the public. Apart from the requirement for transparency, the Constitution directs Parliament and its committees to facilitate public participation and involvement in its legislative processes and other businesses. 612. The principle of public participation is recognized internationally. In the Doctors for Life Case, Ngcobo, J. observed that this principle is embedded in international and regional human rights instruments. The doctrine encompasses the right to participate in political affairs as well as the indirect participation through elected representatives. There is also the general right to directly take part in the conduct of public affairs. The latter is the aspect of the principle of public participation that is of concern to us in this matter. 613. In the Doctors for Life Case, Ngcobo, J highlighted the ingredients of the right of the public to participate in governance affairs and the measures to be taken in order to fulfill this obligation. He stated that: “The general right to participate in the conduct of public affairs includes engaging in public debate and dialogue with elected representatives at public hearings. But that is not all; it includes the duty to facilitate public participation in the conduct of public affairs by ensuring that citizens have the necessary information and effective opportunity to exercise the right to political participation…. Thus construed, there are at least two aspects of the duty to facilitate public involvement. The first is the duty to provide meaningful opportunities for public participation in the law-making process. The second is the duty to take measures to ensure that people have the ability to take advantage of the opportunities provided. In this sense, public involvement may be seen as “a continuum that ranges from providing information and building awareness, to partnering in decisionmaking.” This construction of the duty to facilitate public involvement is not only consistent with our participatory democracy, but it is consistent with the international law right to political participation. As pointed out, that right not only guarantees the positive right to participate in the public affairs, but it simultaneously imposes a duty on the State to facilitate public participation in the conduct of public affairs by ensuring that this right can be realised.” 614. The Learned Judge went on to identify the fruits of participatory democracy by stating that: “The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist. Therefore our democracy includes as one of its basic and fundamental principles, the principle of participatory democracy. The democratic government that is contemplated is partly representative and partly participatory, is accountable, responsive and transparent and makes provision for public participation in the lawmaking processes”. 615. Although Ngcobo, J acknowledged that the law requires the involvement and the facilitation of the public in http://www.kenyalaw.org - Page 95/174