K e n ya S c h o o l o f G o v e r n m e n t • C e n t r e f o r D e v o lu t i o n S t u d i e s • W o r k i n g Pa p e r S e r i e s KENYA DEVOLUTION WORKING PAPER 2 FEBRUARY 2015 Basic Requirements for Public Participation in 94498 Kenya’s Legal Framework OBJECTIVE: Kenyan policymakers have put strong emphasis on transparency, participation and accountability in the new Constitution and legal framework. This paper highlights key provisions in Kenya’s legal framework to stimulate discussion on how the provisions can be converted to functioning participatory systems. U nderstandably, given the pace and scale of Kenya’s transition to devolved government, there are ongoing questions about roles and responsibilities of different parts of government and the role of citizens under devolution. Global experience shows that it takes This working paper is the second in a series of devolution briefs that are being developed and disseminated through a partnership between time for systems to be put in place and for legal requirements to be operationalized. the Centre for Devolution Studies (CDS) - Kenya School of Government This working paper seeks to distil key KENYA’S CONSTITUTION AND LEGAL FRAMEWORK PROVIDE - and the World Bank. The series has STRONG FOUNDATION FOR PUBLIC PARTICIPATION provisions in the legislative framework been produced with the support of Disclosure of information: Clear scal reporting and related to transparency, accountability citizen access to timely accurate information on the Kenya Accountable Devolution Transparency budgets, government programs and results; and participation in county government, ATI legislation (CoK Arts: 35, 201, 232; CGA 2012 Program (KADP), financed by DFID and Arts: 94, 95, 96; PFMA 207) the Australian Government. in particular the planning and budgeting Responsiveness and answerbility: Accountability in nancial matters, Independent Commissions cycle, and present them in a format Accountability to oversee implementation of constitutional For more information, please contact: provisions, handle citizen complaints that is useful for county planners, (CoK Arts: 174, 201; CGA 89) Dr. Kemoli Sagala executive and assembly members. Public consultation and decision making: Public Coordinator, shall be engaged in budget and policy formulation, Centre for Devolution Studies (CDS), It can be used as a guide for how Participation planning and social service delivery priority setting (CoK Arts: 174, 201, 232; CGA 47, 91, 99-100; Kenya School of Government Counties can interface with citizens based PFMA 125, 128, 131, 137 UAC 2011, 21 and 22) e: kemoli.sagala@ksg.ac.ke on Kenya’s legislative framework. t: +254 20 2375340 / 2043339 (Ext. 176) Useful resources in this working paper include: • Minimum requirements for transparency, accountability, and participation at the county level based on Kenya’s legal framework (Box 1). • A public participation checklist which can help County Governments assess whether they are on track in operationalizing legal provisions related to citizen participation in planning, public financial management and monitoring (Box 2). • County budget documents and timeline for tabling in the county assembly and for release to the public (Box 3). • Minimum requirements for Transparency, Accountability and Participation in the budget cycle (Box 4). Commitment to citizen participation in the planning, delivery of services, budgeting and monitoring is well articulated across the legislation. The Constitution refers to these Ministry of Devolution principles in Articles 10 and 174 and reference is made specifically to participation in: and Planning public finance (Art. 201), the process of policy-making (Art. 232) and, the governance and management of urban areas and cities (Art. 184). The County Governments Act (Sections 3 and 6); the Public Finance Management Act (Section 10); the Transition to Devolved Government Act (Section 14); and the Urban Areas and Cities Act (Section 3) are all guided by principles of transparency, accountability and participation. Kenya School of Government 1 Kenya School of Government • Centre for Devolution Studies • Working Paper • Series No. 2 Key elements of public participation (social accountability) Social accountability refers to processes which enable Elements of PUBLIC PARTICIPATION citizens to hold state institutions accountable and make them responsive to their needs. Transparency of public Government finances and performance is ensured through rules, mechanisms, and capacities for sharing information on Transparency: Participation government programs, budgets, expenditures, and results information Accountability and Feedback: for citizens information with citizens. Participation mechanisms enable citizens from citizens to participate in setting budget priorities and monitor expenditures, and assess service delivery performance; they also include feedback systems, which provide citizens Citizens with the opportunity to provide comments and grievances. Accountability mechanisms include both direct and indirect relationships, where service providers are sanctioned if they fail to meet an established standard. Kenya’s emphasis on public participation is in line with emerging global experience on what is needed to make decentralization work Global experience indicates that effective decentralization often depends on balancing increased discretion of local governments with increased accountability—both upwards and downwards. Global and Kenya’s own experiences suggest that there are significant risks associated with devolved service delivery, if proper accountability mechanisms are not quickly put in place. Building downward accountability requires tailoring county systems to be responsive to citizens’ needs and adapted to the local context, such as the size of the county, level of urbanization, capacity of the county government, number of marginalized groups and others. Experience shows that such a process of adaptation is enhanced through a participatory process in consultation with the county government, along with civil society, as opposed to a top down approach.1 Kenya’s progressive legal framework “County Governments should conduct their Transparency, participation and accountability are at the business openly and publicly and facilitate heart of the Constitution of Kenya (CoK) and subsequent citizen involvement in their business and legislation. The Constitution places extensive requirements committees.” for public participation upon national and devolved -- Constitution Art. 196 governments as enshrined in Article 1 of the CoK. The “Members of the County Assemblies should devolution laws in turn provide multiple provisions that maintain close contact with the electorate county governments are required to implement including and consult with them on issues under timely access to information, public involvement in planning, discussion in the County Assemblies.” budgeting, in the establishment of performance standards -- CGA Section 9:1 and involvement in county decision making. The challenge ahead is to translate legislative provisions into operational “County Governments should create guidelines, working systems and capacities. structures, mechanisms and guidelines for citizen participation... ensure participation is open to all without discrimination and What are minimum legal requirements for have safeguards against domination of accountability at the county level? the consultations by one group (whether This paper provides an overview of core provisions in politicians, elites or CSOs).” Kenya’s legal framework for transparency, accountability -- CGA Section 115 and participation at the county level (Box 1). These include public participation in policy making, throughout the planning and budget cycle. This means that citizens must be given adequate time and information to participate effectively. Box 3 provides the recommended timeline for release of budget documents to the public and for tabling in the county assembly. 1 World Bank, Devolution without Disruption, pg. 162. 2 Kenya School of Government • Centre for Devolution Studies • Working Paper • Series No. 2 BOX 1: Minimum requirements for PARTICIPATION at the county level based on Kenya’s legal framework Overall legal, regulatory, institutional framework Reference in Legislation 1. County Governments (CGs) should create structures, mechanisms and PFMA Section 207. guidelines for citizen participation. The structures and guidelines should ensure participation is open to all without discrimination and have safeguards against domination of the consultations by one group (whether politicians, elites or CSOs). 2. Each county assembly shall develop laws and regulations giving effect to the CGA Section 115 (2) and 47 requirement for effective citizen participation in development planning and performance management within the county and such laws and guidelines shall adhere to minimum national requirements. 3. CGs and its agencies shall designate an office or officer for purposes of CGA Section 96 and CoK, ensuring access to information and shall enact legislation to ensure access to Art. 35. information for which reasonable fees may be imposed. 4. CGs should promote access to information for minorities, marginalised groups CoK, CGA, PFM Act and communities. (Specifically Article 35 and 254:3) 5. CGs should establish mechanisms to facilitate public communications and CGA Section 94 and 95. access to information with the widest public outreach using media, which may include: television stations, information communication technology centres, websites, community radio stations, public meetings; and traditional media. 6. CGs should develop city-level interactive websites on which planning Urban Areas and Cities Act information will be posted and feedback received. 2011. 7. CGs should create legislation to provide the institutional framework for CGA Section 100-101. facilitating civic education and establish a civic education unit. 8. County Governors are responsible for promoting and facilitating citizen CGA, Section 30 and 92. participation in the development of policies and plans, delivering services, and for submitting an annual report to the county assembly on citizen participation in the affairs of the county government. 9. CGs should establish County Budget and Economic Forums (CBEF) as a PFM Act Section 137 “means for consultation” by the county government on plans and budgets. 10. CGs should develop complaints (grievance redressal mechanisms) which are CGA Section 47 and 59, followed up and have the confidence of citizens. These should be based on PFM Section 48 and 139. common standards, with clear regulations and operational mechanisms. 11. County Government Authorities, agencies and agents have a duty to respond CGA Section 89, to petitions and challenges from citizens. Public authorities should promote FOI Clause 27. accountability; ensure that expenditure of public funds is subject to effective oversight; and promote informed debate on issues of public interest. 12. The County Governor should publicly deliver an annual State of the County CGA Section 30K. address. Participatory Budgeting 13. County Governors are responsible for ensuring citizen participation in the CoK Art. 232 and CGA planning and delivery of services. Section 115. 14. Citizens should be engaged in preparation of integrated development plans. Urban Areas and Cities Act Citizens should be represented in the boards of cities and municipalities (Section 22 and Second including representatives of professional associations, private sector, Schedule Clauses 1 and 2). registered associations of informal sector, neighbourhood associations and associations of urban areas and cities. 15. County planning should serve as a basis for engagement between county CGA Section 102. governments, citizens, other stakeholders and interest groups. 16. The County Planning Unit (CPU) will be responsible for ensuring meaningful CGA Section 105. citizen engagement in planning processes through a 5 year County Integrated Development Plan (CIDP); a 10 year County Sectoral Plan; a 10 year County Spatial Plan; and a Cities and Urban Areas Plan. 3 Kenya School of Government • Centre for Devolution Studies • Working Paper • Series No. 2 Participatory Budgeting 17. The County Executive Committee (CEC) member for finance should ensure PFMA Section 125. citizen participation in planning and budgeting. 18. The County Budget circular should prescribe the manner in which the public PFMA Section 128. will participate. Participation could take various forms including but not limited to direct participation, written comments and through representatives. 19. The public should be consulted in preparation of the County Fiscal Strategy PFMA Section 117. Paper. 20. The accounting officer of an urban area or city should ensure that the public Urban Areas and Cities Act participates in the preparation of the annual budget estimates/strategic plan. Section 21, draft Urban Policy pg. 18, PFMA Section 175. 21. The relevant committee of the County Assembly should take into account PFMA Section 131. public views in considering budget estimates. Participatory Monitoring 22. Each county should develop the Performance Management Plan to provide for CGA Section 47 and 59, mechanisms of monitoring the work of the county. PFM Section 48 and 139. 23. Each County should establish County Public Service Boards. The CPSBs CGA Section 57-59. should be responsible for (i) reporting to the county assembly, (ii) informing and educating county public officers, (iii) advising the county governments on the implementation and monitoring of the national performance management system which should involve citizens facilitated by the County Executive Committee. Financial Transparency – Public Financial Management (PFM) 24. Various budget documents (e.g. Budget estimates and approvals, fiscal PFMA Section 48, 123(3), strategy paper, Audited accounts, Annual Reports, Quarterly Report, Pre and 139 and 166(4c). post- election reports) should be published and publicized within laid out times in user friendly formats (e.g. have executive summary and narrative) so the citizens can provide meaningful input and engagements. 25. Municipal and city boards should make public their annual audited financial The Urban Areas and Cities statements; to be published in two major public dailies, as well as on Board’s Act, Section 48. website, and in a conspicuous place at the Board’s office. Proposed checklist for assessing level of Transparency, Accountability and Participation The County Public Participation Checklist (Box 2) has been developed as a tool for use by County Governments (Executive and Assembly), civil society organizations, citizens, partners and others to track progress in relation to legislative requirements for participation, transparency and accountability. A common assessment framework such as this tool can help identify challenges and barriers to promoting effective participation. It can provide government and citizens with a ‘baseline needs assessment’ to identify good practices and areas where additional attention is needed. This tool can assist county governments to implement an effective public participation and accountability framework in their planning and budget cycle. Furthermore, it can serve to bring together government and civic actors to work jointly to embed participation in county planning and budget processes that brings together supply- and demand-side interventions. While the proposed checklist has 34 questions/indicators, all indicators are not of equal importance. Based on the Working Paper 5, One Year On: Review of County Initiatives in Public Participation in the Role out of Devolution, the checklist highlights 10 indicators that are proposed, for discussion, as priority indicators. 4 BOX 2: County PUBLIC PARTICIPATION Checklist Kenya School of Government • Centre for Devolution Studies • Working Paper • Series No. 2 County Name: ............................................................................................................................................................................................................................................................ Assessment undertaken by: ........................................................................................................................................... Date: .............................................................................. Yes No Requires Action 1.0 Communications and Transparency around Citizen Engagement 1.1 Have the County Government (CG) enacted legislation to provide the institutional framework for facilitating public participation and civic education? Are there mechanisms in the CG to facilitate public communications and information access e.g. media, TVs, ICT centers, websites, 1.2 community radio, baraza, tradition media? 1.3 Are there platforms to promote access to information for minorities, marginalized groups and communities? 1.4 Has the CG established a civic education unit for purposes to ensure access to information by the public? 1.5 Has the County Governor publicly delivered an annual State of the Country Address? 1.6 Has the County Governor submitted an annual report to the county assembly on citizen participation? 2.0 Participatory Planning 2.1 Has county assembly developed laws and regulations supporting effective citizen participation in development planning and performance management? 2.2 Has the CG established ‘County Planning Units (CPUs) or County Planning Committees? 2.3 Has the CPU or county planning committee ensured effective citizen involvement in planning processes in (1) CIDP (2), Sectoral plan (3), spatial plan (4), urban areas plan? 2.4 Are citizens represented in key forums, including the boards of cities and municipalities? 3.0 PARTICIPATORY BUDGETING 3.1 Has CG published and publicized various budget documents within specified time to enable citizens meaningful input and engagement? (all with executive summary and narrative)? 3.2 Has the County Executive established the County Budget and Economic Forum (CBEF)? 3.3 Does the County Executive facilitate public consultations at different stages of the budget cycle? 3.4 Does the CA have a Budget and Appropriations Committtee (CBAC)? 3.5 Does CBAC release budget information? 3.6 Does the CBAC convene public budget forums for analysis of the CE proposed budget 4.0 Participatory Monitoring 4.1 Has the CG established the County Public Service Boards (CPSBs)? 4.2 Has the CG developed the Performance Management Plan? 4.3 Does the CPSB (1) report to the county assembly? (2) inform and educate county public officers? (3) advise the CG on the implementation and monitoring of the county performance management system which should involve citizens facilitated by the CEC? 5.0 GOVERNMENT RESPONSIVENESS AND ACCOUNTABILITY TO CITIZENS 5.1 Does CG establish feedback mechanisms for citizens to know their input was considered? 5.2 Do the public forums set aside specific time for public questions and feedback? 5.3 Does the CG have a service charter on access to information? 5.4 Does it avail the information within the specified time? 5.5 Has CG developed interactive websites on which planning information is posted and feedback received? 5.6 Has the CG conducted an Annual Public Expenditure Tracking Survey (PETS) with engagement of the Controller of Budget? 6.0 FINANCIAL TRANSPARENC Y & REPORTING 6.1 Has CG published and publicized various budget documents within specified time (Audited accounts, annual reports, quarterly reports) 6.2 Did municipal boards make public their annual audited financial statements by publishing in two major public dailies, on boards website and on board’s office where easily viewable by the public? 6.3 Does the CG have a Public Accounts Committee and Public Investment Committee that regularly audit CG financial reports? 5 BOX 3: County Budget Documents and timeline for tabling in the county assembly AND FOR RELEASE TO THE PUBLIC Budget Contents of the Document Date Due in the Deadline for Rationale for public release Publication Information / Kenya School of Government • Centre for Devolution Studies • Working Paper • Series No. 2 Document (What MCAs should look out for before County Assembly Action by the CA Input by the Public (approving) the document) 1. Budget Circular • Timelines for various activities; 30th August - The document is critical for the public To be publicized within 7 days of • Procedures for review and projection of (County) to know when, where and how to publication. revenues and expenditures; Action: For the participate in the budget process. • Key policy areas to be taken into information consideration; of members • Procedures for public consultation; and especially in • Format for budget documentation. scheduling their annual calendar. 2. County • Strategic priorities for the medium term; 1st September No date provided The plans will go through three main 14 days before adoption in the County Integrated • Programmes to be delivered; but should be stages: Executive and then tabling in the CA. Development • Significant capital expenditure; and within 14 days Plans (CIDP)/ • Grants, transfers and subsidies to be made a. Formulation by the County Planning To be publicized within 7 days of tabling Annual on behalf of County Governments. Action: To debate Unit in the CA and within 7 days after approval Development and approve b. Approval by the County executive in the CA. Plans with or without c. Tabling and approval in the CA. amendments. In each of this stages there is need to share with the public the documents whether as draft especially in stage (a) and (b). 3. Budget Review • Actual fiscal performance in the previous 30th September - The County Treasury will prepare the BROP 14 days before tabling in the county and Outlook year; and it is important that before they table executive committee (with 7 days allowed Paper (BROP) • Updated economic and financial forecasts Action: For it in the County Executive the Public be for input). from the recent Budget Policy Statement; Information of given an opportunity to comment. • Identification of broad policy priorities to be Members. To be publicized 7 days after tabling in implemented by the CG in the medium term; the CA. • Provide indicative available resources (i.e. ceilings) to fund CG priorities—in consultation with CRA and the National Treasury; and • Reasons for any deviations from the financial objectives in the County Fiscal Strategy Paper (C-FSP). 4. County Fiscal • Broad strategic priorities and policy 28th February 15th March There is need that before the County 7 days before tabling in the County Strategy Paper goals—medium term and long term. Executive approves the CFSP, the public be executive. (CFSP) • Outlook on expenditures, revenues and Action: To debate given an opportunity to input. borrowing for the medium term. and approve. To be publicized 7 days after tabling in Thereafter when it is tabled in the county the CA. assembly it should be made public. Finally what the CA approves (with or without amendments) should be made public too for greater certainty. 5. Debt • The total stock of debt as at the date of the 28th February - - - Management statement; Strategy • The sources of loans made to the county Action: For government; information of • The principal risks associated with those members in loans; decision making • The assumptions underlying the debt on the liabilities of management strategy; and the county. • An analysis of the sustainability of the amount of debt, both actual and potential. 6. Budget • Details of all planned development and 30th April 30th June The public need to see what is tabled in 7 days after tabling in the national or CA Estimates recurrent expenditures of the government. the CA. with 14 days of public input. (Revenue and Also the estimated revenues by source Action: To debate Expenditure) and explanation of strategies for deficit and approve This should also be complemented by To be publicized 7 days after tabling in Appropriation financing. with or without clear dates (Not later than 30th May) as National and CA. Bill amendments. to when the public can give feedback to the departmental committees (on sector To pass the specific matters) or to the Budget and appropriations Appropriation Committee. bill to authorise withdrawals from the County Revenue Fund. 7. Budget and Same as above. 30th June - Once all has been discussed and the final To be publicized 7 days after approval in Appropriation budget approved it should be made public the National and CA. Act via the appropriations act and detailed programme/itemized budget documents on the day it is approved but not later than 7 days. 8. Supplementary Revised budget estimates. On needs basis All supplementary budgets should be 14 days before tabling in the National Budget availed before they are tabled in the or CA. documents respective houses for people to input where need be and thereafter when they 7 Days after tabling in the National or CA. are being considered in the house. 9. Finance Act / Taxation and other revenue raising measures 30th September - There is need that the public have a 14 days before tabling in the National Finance Bill of the county government. opportunity to input into the Finance Bill or CA. (within 90 days) Action: To debate before it is tabled in the National or CA; and approve To be publicized 7 days after approval in with or without Further the public should also be allowed the National or CA. amendments. space by the Finance Committee to contribute before the house (s) approve it. 10. Expenditure An indepth analysis on specific sectors to No Specific Date - - - Review Reports establish the progress (or lack of it) by the county. Action: For information of members. 11. Audit Reports An independent opinion on the use of public 31st December 3 months - - funds in the county (both the county executive and county Action: To debate assembly). and decide on what actions 6 should be taken. The budget process in Kenya: national and county level Kenya School of Government • Centre for Devolution Studies • Working Paper • Series No. 2 APRIL 30 01 ls l National budget proposal submitted Bil ova ati ; ap ill LY pri ent on B on pr to Parliament; County budget proposal Ap rlia ri ar; JU ty Pa rop ye pro m ati submitted to County Assembly un y pp ial Co d b l A nc of asse iona f na p at o N nd E LY 30 JU E 01 N JU APRIL 30 MAY 15 Counties publish 3rd National government quarter implementation reports publishes 3rd quarter implementation report MARCH 14 County Fiscal Strategy Paper LY 30 approved by County Assembly JU NE 01 JU FEBRUARY 28 Budget Policy Statement approved by Parliament; County Fiscal Strategy Paper DECEMBER 31 tabled in County Assembly Audit report released by the National Audit O ce FEBRUARY 15 JULY 31 FEBRUARY 15 National government Counties publish Circular released Budget Policy Statement publishes 2nd quarter 4th quarter by National Treasury; submitted to Parliament; implementation report implementation Circular released Division of Revenue and reports by County Treasury County Allocation of AUGUST 30 Revenue Bills JANUARY 31 AUGUST 15 go to Parliament Counties publish National government 2nd quarter publishes 4th quarter SEPTEMBER 1 implementation implementation County develpment plans reports report tabled in County Assembly OCTOBER 31 NOVEMBER 15 Counties publish 1st quarter National government publishes 1st quarter implementation reports JANUARY 1 implementation report CRA sumbits recommendations on Division of Revenue Formulation Approval Implementation Audit/Oversight Source: International Budget Partnership (IBP) 2014 BOX 4: Minimum Requirements for TRANSPARENCY, ACCOUNTABILITY AND PARTICIPATION in the Budget Cycle Stage in the Requirement Legal/Policy Provision Budget Cycle Formulation • Resource Envelope Details made public Public Finance Management • Availing of Budget Information (Proposals and their rationale) Act Section 125 & 128. • Public Participation calls at least 7 days to the meeting • Adequate (at least 7 Days) to the public to avail feedback. Approval • Framework for public engagement with the County Assembly Public Finance Management in the approval process Act Section 125, 129, and • Public participation and feedback mechanism 130. • Provision of documents (in an easy to understand format) before consultative meetings are held. Implementation • Service Implementation and Monitoring Committees Public Finance Management • Feedback mechanism in quality of public goods and services Act Section 125. • Mechanism for petitioning. Audit • Public input in the financial and value for money audits Public Finance Management • Recourse measures for the public where appropriate action Act Section 125. is not taken. Crosscutting • Engagement of the public through the County Budget Section 137. Economic Forum (CBEF). 7 Kenya School of Government • Centre for Devolution Studies • Working Paper • Series No. 2 Public participation at every level—from rural women to urban youth Women in Wajir County participate in focus group discussions Members of the Yes Youth Can! Forum presenting their perspectives on devolved government Abbreviations and Acronyms CBAC County Budget and Appropriation Committee CPAC County Public Accounts Committee CBEF County Budget and Economic Forum CPSB County Public Service Boards CEC County Executive Committee CPU County Planning Unit CG County Government/s FOI Freedom of Information CGA County Government Act PETS Public Expenditure Tracking Survey CIDP County Integrated Development Plan PFMA Public Financial Management Act CoK Constitution of Kenya This paper benefited from contributions from Rabya Nizam (Senior Social Development Specialist, World Bank), Abraham Rugo Muriu (Independent Consultant on Governance & Social Development) and the International Budget Partnership (IBP). Special thanks to Toni Sittoni for editorial work and Lucy Musira (World Bank) for administrative support provided. This working paper is supported by 8