Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR violation of Articles 10(2)(a) and 118(1)(b) of the Constitution and are accordingly liable for invalidation. 581. The 3rd Petitioner was in consonance with the other Petitioners in faulting the impugned amendments for noncompliance with the constitutional and statutory requirements for enactment of laws. The 3rd Petitioner asserts, firstly, that the impugned amendments were passed without the input of the public. It cites the Doctors for Life Case for the proposition that public participation in the conduct of public affairs ensures that citizens have the necessary information and avails them an effective opportunity to exercise the right to political participation. Also cited is the case of Poverty Alleviation Network & Others vs President of the Republic of South Africa & 19 others,CCT 86/08 [2010] ZACC 5, which was cited with approval inKenya Small Scale Farmers and Others vs Republic and OthersNairobi [2013] eKLR on the essence of public participation, and for the observation that a decision that is made without consulting the public can never be an informed decision. 582. According to the 3rd Petitioner, neither the public nor stakeholders were invited to submit their memoranda or to participate in the public hearings held by the National Assembly. Further, that the public was not sensitized on the contents of the impugned amendments and their effects. The 3rd Petitioner relies on the case of Minister of Health and Another vs New Clicks South Africa (Pty) Ltd and Others2006 (2) SA 311 (CC) in support of the proposition that what matters is that at the end of the day, a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say; and that what amounts to a reasonable opportunity will depend on the circumstances of each case. 583. The 3rd Petitioner submits that the court must look at the entire process to determine whether it meets constitutional muster and relies in support on the 2013 Law Society Case. The 3rd Petitioner’s conclusion is that the process of passing the impugned amendments was fundamentally flawed as the public was unable to submit memoranda due to the short notice, and that there was no invitation to either present the memoranda or for public hearings. 584. The Interested Parties who support the Petition also hold the view that the manner of the enactment of the impugned amendments render them unconstitutional. They support the Petitioners’ claim that public participation was insufficient. The 5th Interested Party cites the case of Kenya Union of Domestic, Hotels, Education and Allied Workers (Kudheha Workers) vs Salaries and Remuneration Commission (2014) e KLR where the court held that the Constitution, at Article 94, has vested legislative authority of the people of Kenya in Parliament, and that Article 118 has provided for public participation and involvement in the legislative business. It opines that introducing amendments that are controversial and substantive through an omnibus Amendment Act limits the ability of persons to participate. Its view is that in the instant case, the general public only had 8 days to go through the entire miscellaneous amendment Bill that was introducing amendments to the impugned Act and 66 other statutes. In its view, even for the most elite members of society, this was an unconscionable burden. 585. It is also the case of the 5th Interested Party that there was no mention of the mandatory collection of personal information by the State to aid in the functioning of NIIMS. There was therefore, in the 5th Interested Party’s view, an entire facet of issues left out when the public was invited to give their views on the Bill. It is the 5th Interested Party’s position that the public participated without information, and their participation was therefore not as meaningful as it would have been had the public been made aware of the entirety of what NIIMS was to entail. The 5th Interested Party cites the case of Lucy Wanjiru & another vs Attorney General & another [2016] eKLR which quotes the case of Secretary, Ministry of Information and Broadcasting Government of India & Others vs Cricket Association of Bengal & Another [1995] 2 SCC 161 for the holding that the right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues in respect of which they are called upon to express their views. 586. The 6th Interested Party joined the Petitioners and the 5th Interested Party in faulting the process of enactment of the impugned amendments. It submits that the public had a right to be informed before significant changes were http://www.kenyalaw.org - Page 90/174