POLICY MAKING IN KENYA UNDER THE NEW CONSTITUTION

Prof Ben Sihanya

Policy making is the process by which a Government (or any other entity) translates its vision into statements and actions to achieve desired outcomes. Good policy making is essential if government is to achieve its aims and deliver real change and benefits. Because of its importance, the management of public policy must be guided by strategic principles which foster policy and juridical dynamism, in which policy management is seen as a process of social learning. It is a process in which Kenya embodies new knowledge and enhances its adaptive capability. Policies in Kenya are embodied in a wide array of documents: parliamentary sessional papers, national development plans e.g. the Economic Recovery Strategy and Vision 2030, presidential circulars, ministerial and departmental circulars,  parastatal strategic plans and policies, political party manifestos, and, quite incredulously, presidential or ministerial roadside declarations.

While the links among policy making, governance and development has dominated academic and internal bureaucratic discourse over the last 30 years, it has received lip service in the public, and specifically, political domain. This is mainly because of the prominence given to constitutional and legislative frameworks of governance. Indeed, despite the adoption of a new Constitution on August 27, 2010, some skeptics doubted whether the new constitutional dispensation would consequently secure a better political and social economy, especially at the household level. I argue that this skepticism emanates from two factors: first, the previously missing link between constitutionalism and policy making; second, limited appreciation of the place of policy making in the Constitution 2010.  

Under the 1969 and 2008 Constitutions, there was no mention of “policy” in the constitutional text. In contrast, the Constitution 2010 mentions the word “policy at least 23 times. Policy making has been constitutionalised in at least three main ways: first, under Article 10, the Constitution has provided a set of comprehensive national values and principles of governance to bind all state organs, state officers, public officers and all persons in making or implementing public policy decisions. Second, Article 21 tasks the Government with a mandatory duty of taking policy measures to achieve progressive realization of the comprehensive economic and social rights guaranteed under Article 43. Third, Article 232 provides that the values and principles of the public service include the involvement of the people in the process of policy making.

The impact of these constitutional provisions can best be appreciated through a full appreciation of the policy process. The policy making cycle conventionally entails policy initiation, formulation, debate, implementation and review. These activities will be conducted by a number of organs and officers or actors at different governance levels: the President, Prime Minister, Deputy president, Cabinet, Cabinet Secretaries, Principal Secretaries, constitutional office holders, constitutional commissions, county governments, individual state officers in the national and county governments, state parastatals, and agencies, etc.

Thus the constitutional framework of policy making affects the process and outcome of policy making in all these levels. In terms of the process, the Constitution requires that it be participatory, inclusive, transparent, and embody integrity and accountability. In terms of outcome, the process of policy making should secure patriotism, national unity, sharing and devolution of power, the rule of law, democracy, equity and equality, social justice, inclusiveness, non-discrimination and sustainable development (Article 10, etc).

Constitutionalizing the policy making framework is significant in at least three ways. First, it opens up the process of policy making for different kinds of participation by state organs and officers, and non-state actors such as academia, civil society and, the general public. This is significant in terms of value addition in the process of governance in Kenya. Grassroots participation in policy making is therefore secured. Participation increases the available competencies. Second, the constitutional provisions supply a framework for measuring the constitutionality of the policy documents. They require that the policies should secure such outcomes as equity, equality and social justice. In this way, policy as a macro and micro management instrument brings to life the values of the Constitution. Third, constitutionalizing policy making is significant because it makes the process and outcome of the policy process subject to the rules of administrative justice under Articles 47 and 48 (on fair administrative action and access to justice). The policy content and process is also rendered justiciable as the contravention of the Constitution and statutes under Article 2 (on supremacy). This heralds a new space in the governance process in Kenya. Some of the core policy concerns are health, agriculture and food security, education, communication and public secutity.

These provisions then require that the state and non-state actors in the policy making process should be equipped with capacity to undertake the policy making process within the constitutional requirements. In addition, the courts should also be equipped with relevant human  resources  as well as the administrative and technical capacity to handle the anticipated influx of policy litigation.

Prof Sihanya teaches Intellectual Property and Constitutionalism at the University of Nairobi Law School; This e-mail address is being protected from spambots. You need JavaScript enabled to view it