Machakos County Public Participation Act, 2014 (No. 8 of 2014)

SPECIAL ISSUE Machakos County Gazette Supplement No.24 (Acts No. 8) REPUBLIC OF KENYA MACHAKOS COUNTY GAZETTE SUPPLEMENT ACTS, 2014 NAIROBI, 29th December, 2014 CONTENT Act Peca The Machakos County Public Participation Act,2014..... .....323 PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER. NAIROBI 323 No.8 Machakos County Public Participation 2Ol4 MACHAKOS COUNTY PUBLIC PARTICIPATION ACT,, 2OI4 (No.8 of 2014) Date of Assent: 22nd December, 2014 Commencement Date: 29th Decentber, 2014 ARRANGEMENT OF SECTIONS Section PART I-PRELIMINARY l-Short title. 2-Interpretation. 3-Objects and purpose of the Act. 4-Guiding principles. PART II ADMINISTRATION 5-Public participation guidelines. 6-Public consultative meetings. 7- Annual County Citizens' Participation Forum. 8- Affirmative action programmes. PART III PETITIONS 9-Form of Petition. 1G-Procedure for presenting petition 1 1-Consideration of petition. 12-Procedure in the investigation. 13-Publication of decision on petition. I 4-Register of petitions. 15-Appeal against decision on a petition. 1 6-Petitions to Assembly. PART IV MISCELLANEOUS 17- Oversight of the public consultation process. 1S-Annual leport. I 9-Management of information. 324 2014 Machakos County Public Participatiorr No.8 2O-Offences and penalty. 21-Regulations. SCHEDULES FIRST SCHEDULE- Public Participation Guidelines SECOND SCHEDULE-Form of a Public Petition No.8 325 Machakos C ount), Publ ic P artic' ipcttion 2014 THE MACHAKOS COUNTY PUBLIC PARTICIPATION ACT, 2OI4 AN ACT of the Machakos County Assembly to give effect to Articles l,l0 (2) (a), 1.18, 119,174,232 (l) (d) and paragraph 14 of Part 2 of the Fourth Schedule of the Constitutionl to establish modalities and platform for public participation in the governance of the County and for connected purposes. ENACTED by the County Assembly of Machakos as follows PART I PRELIMINARY 1. This Act may be cited as the Machakos County Public Participation Act, 2014. 2. In this Act. unless the context otherwise requires "Executive Committee Member" means the Machakos County Executive Committee Member for the time being responsible for matters relating to public participation; "County Secretary" means the County Secretary of Machakos County appointed under section 44 of the County Government Act No. 17 of 2012; "Gaz.ette" means a gazette published by the authority of the County Government or a supplement of such gazette, "government" means the Machakos County Government; "County public officer" means any person appointed by the Machakos County Government and holding or acting in any county public office whether paid or unpaid or on contractual or permanent terms but does not include a person engaged on a part time basis in a county public body paid at an hourly or daily rate; "public", when used in relation to public participation in this Act, means Short tltle. Interpretation (a) the residents of the County; 2014 326 Machakos Counv Puhlic Participation (b) the rate payers; (c) any resident civic organization or non governmental, private sector or labour organization with an interest in the govemance of the county; (d) non-resident persons who because of their temporary presence in a the County consume the services or make use of facilities provided by the government. "public participation" means an open, democratic and accountable process of engaging a representative sector of the public in formulating policies and developing laws that affect them. 3. The objects and purposes of this Act are, to establish a legislative framework to give effect to Articles 1, 10 (2) 1 18, 1 19, 174, and 232 (l) (d) and paragraph 14 of Part 2 of the Fourth Schedule of the Constitution and in particular to provide for (a) structures for public participation; (b) mechanisms, processes and procedures fbr participation; (c) handling of petitions and complaints lodged by members of the public: (d) procedures for notification and public comment; (e) holding of public meetings and hearings; (0 method of participation for persons with special needs; (g) the rights and duties of members of the public in public participation; and (h) promotion of public participation. 4. In addition to the requirements of section 87 of the County Governments Act No. 17 of 2012 , public participation in the government shall be guided by the following principles (a) the communities, organizations and citizens affected by any policy decision of the government shall have the right to be consulted No.8 Oblects and purpose of the Act Gurdrng prr ncr ples. No.8 327 Maclruko,s County Publ ic Pa rticipatiort and shall be accorded an opportunity participate in the process of formulating policy; (b) availing participants access to the information necessary to ensure meaningful participation; and (c) feedback to the public on how their input is included in the policy decision. PART II-ADMINISTRATION 5. (1) The County Secretary and the Clerk to the County Assembly shall formulate public participation guidelines fbr the County Executive and County Assembly respectively. (2) The guidelines contemplated in subsection (1) shall make provision for the following matters (a) public participation shall be undertaken within the laid down county government structures and offices; (b) facilitation and moderation of public participation activities to ensure they are representative of the broad spectrum of the public; (c) provision for civic education programmes to promote public participation in public affairs; (d) measures to ensure that adequate financial resources to correspond to the nature and scope of the public participation are in place; (e) capacity building initiatives to ensure sufficient and adequately trained staff to carry out the public participation: (f) ensuring reasonable time for public to input and comment on any proposals; (g) establish a feedback mechanism to the public including opportunities for the public to forward additional comments or input to the decision 2014 to the Pubhc particrpation gurdelines. 2014 328 Machakos Counfy Public Participation taken; (h) develop an evaluation framework to the public participation plan; (i) ensure that the public, affected groups, and stakeholders are informed of the results of the public participation process and how their input was used in the decision taken; 0) mechanisms for adopting new public participation techniques and technologies; (k) for the purpose of creating the culture of, and respect for the principles of public participation, facilitate public education and training programmes in relating to public participation; (l) prepare and submit an annual reports to the Governor for submission to the County Assembly on the status of public participation in the affairs of county governance; and (m) any other lawful matter. (3) The guidelines developed under this section shall be laid before the County Assembly for approval. 6. (1) Public participation may be carried out through public consultative meetings which shall be conducted in accordance with the requirements set out in the First Schedule. (2) Except as provided in the Schedule, an office conducting a public consultative meeting may regulate its own procedure. (3) A public consultation meeting shall be held in public and any person may attend and participate in the deliberations. 7. (1) Once every year, the County Executive Committee Member, shall organize and facilitate the convening of a citizens' forum to discuss any matter of public importance affecting the public. (2) The County Executive Committee Member shall, when a forum is convened, ensure that the forum is fully publicized to enable the attendance and participation of a wide section of the population, including gender and mar ginalized groups and communities. No.8 Pubhc consultative meetlngs, Annual County cttrzens' partlclpation forum. No.8 329 M achako s C or ut t1, P ubl ic' P u rt i c i ltuti ort (3) The County Executive Cornrnittce Member shall appoint a secretary for every forum to take the minutes of the proceedings of the forum and shall publicize the minutes throughout the county (a) taking note of the issues arising from the forum for action or response by the relevant organ or organs of the county government or other entity; and (b) giving feedback on the action taken on the issues raised. (4) The County Executive Committee Member shall facilitate meaningful participation of the citizens in the forum including (a) ensuring accessibility to the forums; and (b) the use of language that is understandable by the citizens including person with disabilities. (5) No meeting shall be convened for the purpose of promoting, opposing or discussing the election of any person as a member of that County Assembly or as a member of Parliament. (6) Nothing in this section shall be construed as derogating from the provisions of any other written law relating to the holding of public meetings. 8. The County Executive Committee Member shall ensure that there are measures in place to ensure that minorities and marginalised groups participate decision making in all matters that affect them. PART IV-PETITIONS 9. (1) The right for citizens to petition the county government as contemplated under section 88 of the County Governments Act shall be in accordance with this section. (2) A petition to County Executive Committee shall be in the form set out in the Second Schedule and may (a) be handwritten, printed or typed; (b) be in English or Kiswahili and be written in respectful, decorous and temperate language: 2014 Partlclpatron by mrnorihes and marginahzed groups. Form of Pehtron 2014 (c) (d) (e) (f) (e) 330 Machakos County Public Participation No. E be free of alterations and interlineations in its text; be addressed to the County Secretary; have its subject-matter indicated on every sheet if it consists of more than one sheet; confirm that effgrts have been made to have the matter addressed by the relevant body and that there has been no i"rponse on the matter from the relevant body or that the response has not been satisfactory; confirm that the issueg in respect of which the petition is made are not pending before any court or other constitutional or legal body; conclude with a clear, proper and respectful prayer, reciting the definite object of the petitioner or petitioners in regard to the matter to which it relates; contain the names, addresses, identification numbers, signature or a thumb impression of the petitioners; in the case of a petition presented by a Member of County Assembly on behalf of a petitioner, be countersigned by the Member presenting it; or (h) (i) o (k) if the petitioner is unable to sign, be signed by a witness in whose presence the petitioner shall make his or her mark or thumb impression on the petition. 10. (1) A petition to the County Executive Committee shall be submitted to the County Secretary. (2) The County Secretary shall, within seven days of the date of receipt of the petition, review the petition to ascertain whether the petition meets the requirements of this Act. (3) Where the County Secretary considers that a petition does not comply with section25,the County Secretary may give such directions as are necessary to ensure that the petition is amended to comply with that section. Procedure for presenting petitlon. 331 . No. 8 Machakos County Public Participation 2014 11. (l) The County Secretary shall, if satisfied that the Constderatronor- petition meets the requirementi of this Act, forward the petttron petition to the County Executive Committee or the relevant body for consideration. (2) The County Executive Committee or the relevant body relating to the petition may appoint a Committee to investigate the subject matter of the petition. 12. (l) The County Executive Committee or other Procedure tn the relevant body appointei for that purpose in relation to a rnvestrsatron' petition may hold public hearing and may (a) invite individuals to submit memoranda or appear before the Committee to give evidence on a petitionl (b) invite any pr\blic officer to appear before them to give evidence relating a petition; and (c) engage qualified persons to assist it in the discharge of their functions; (2) The evidence given by a person invited under sub section (1) shall be taken down in writing and a copy of it sent to the person who gave the evidence. (3) The presentations given during a public hearing shall be recorded. (4) The County Executive Committee or other body may at its discretion refuse to hear any irrelevant evidence or to listen to any unruly or unmanageable person giving evidence. (5) Any document received at the investigation of a petition shall not be withdrawn or altered without the knowledge and approvql of the County Secretary. (6) A document submitted to the investigation of a petition may be released to the person who submitted it at the conclusion of the deliberations. (7) The County Secretary shall, within fourteen days of the decision of the County Executive Committee or other body notify the petitioner of the decision. 332 2Ol4 Machakos Countv Public Participation No.8 13. The County Secretary shall, within fourteen days Pubrrcation'r after the decision is communicared to rhe petitioner- l:ii::.,,1"" (a) give notice of the decision to the public by posting a copy in a conspicuous place at the offices of the County Government; (b) inform the public that a copy or extract of the decision is available on its website; (c) publish the decision in the Gazette, print or electronic media; or (d) publish the decision in such other manner as may be appropriate for the dissemination of information. 14. (1) The County Secretary shall keep and maintain a Regrsteror register in which shalt be recorded uit petitions and petrtrons supporting documents, and the decisions of the County Executive Committee or the relevant body. (2) The register of petitions under subsection (1) shall be accessible to the public during working hours. 15. Any petitioner who is dissatisfied by the decision of Appeal aganst the County Governmenr or the relevanr body may appeal to i::l::';'"" ^ the Commission on Administrative Justice. 16. A petition may be presented or submitted to the Pehhons to Assembly by the petitioner oi a Member of the Assembly on Assemblv behalf of the petitioner in accordance with the Standing Orders of the Assemblv. PART VI MISCELLANEOUS 17. The County Executive Committee Member shall o'ersrghtorthe oversee public consultation under this Act and may, in ::lli",*,-" writing, give directions on matters of policy not inconsistent process. with the provisions of this Act. 18. (1) The County Executive Committee shall, at the Annualreport end of each financial year cause an annual report to be prepared. (2) The County Executive Committee shall submit the annual report to the Governor and the County Assembly not later than three months after the end of the year to which it relates. No.8 1aa JJJ Machakos C ounh' Publ ic Participation (3) The annual report shall contain, in respect of the year to which it relates a description of the activities and outcomes of public participation and any other relevant information. 19. (l) The County Executive Committee Member shall publish and publicize all important information affecting the County within its mandate. (2) A person may request the County Executive Committee Member for information in public interest. (3) A request for information under subsection (2) (a) shall be addressed to the County Secretary or such other person as the County Executive Committee Member may designate for that purpose; (b) may, where the County Executive Committee Member incurs expense in providing the information, be subject to payment of a reasonable fee; and (c) may be subject to confidentiality requirements. (4) Subject to the provisions of Article 35 of the Constitution and the law relating to freedom of information and data protection, the County Executive Committee Member may decline to give information to an applicant where (a) the request is unreasonable in the circumstances; or (b) the applicant fails to satisfy any confidentiality requirements imposed by the County Executive Committee Member. 20. A person who (a) without justification or lawful excuse, obstructs, hinders, or in any way interferes with a public consultative meeting; (b) knowingly submits false or misleading information to a public meeting; commits an offence and is liable on conviction to a fine 2014 Management of rnformation. Offences and penalty. 334 2Ol4 Machakos County Public Participation No.8 not exceeding fifty thousand shillings or to irnprisonment for a term not exceeding six months or to both. 21. (l) The County Executive Committee Member may Regulattons make regulations for the better carrying into effect of the provisions of this Act. (2) Without prejudice to subsection (1) the Regulations may prescribe [or (a) conduct of public participation including providing for additional guidelines; (b) mode of feedback to the public; (c) use of media to promote public participation; (d) coordination of all forms of citizen fora including sub county, village, neighborhood and other associations; (e) representation of citizens in the consultative fora; and (0 conduct of the affairs of the Secretariat. (3) Pursuant to subsection (1), the nature and scope of the Regulations shall (a) be for the purpose and objectives set out under section 3 of this Act: (b) be limited only to the matters set out in this Act; and (c) comply to the drafting standards set out under any law applicable to the county. FIRST SCHEDULE (s.6) CONDUCT OF PUBLIC CONSULTATIVE MEETINGS All public consultative meetings shall be conducted in accordance with the following requirements : 1. Be based on a realistic timeframe for the consultation, allowing reasonable period for preparqtion and submission of views. l 2. Be clear as to the type of the public, community or profession to be consulted, the issues or matter for consultation and for what specific purpose. 33-s No.8 Muchako.s Coun4'Public Participation 2014 3. Ensure that the consultation document is as simple and concise as possible, providing the summary of the issues or matter for consultation and clearly setting out the questions to be address. 4. Publish and distribute the documents as widely as possible, including but not limited to providing hard copies, television advertisements, websites, community radio announcements and traditional media. 5. Ensure that all responses are carefully and open-mindedly analysed and the results made widely available to the public, including an account of the views expressed and the reasons for the decisions taken. 6. Disclose all information relevant for the public to understand and evaluate the decision. 7. Ensure that stakeholders have fair and equal access to the public participation process and their opportunity to influence decisions. 8. Ensure that all commitments made to the public, including those by the decision-maker, are made in good faith. 9. Undertake and encourage actions that build trust and credibility for the process among all qhe participants. I 10. Collect and collate all data presented during public consultations. 11. Ensure that there is no misrepresentation of work performed or that was performed under the relevant body's direction. 12. Examine all of its relationships or actions, which could be legitimately interpreted as a conflict of interest by clients, officials, the public or peers. 13. Should not engage in conduct involving dishonesty, fraud, deceit, misrepresentation or discrimination. 14. Should not accept fees wholly or partially contingent on the client's desired result where that desired result conflicts with its professional judgment. 15. A question before the meeting shall be decided with a supporting vote of at least two thirds of the members present. 2014 336 Machakos C ounty P ublic Parti cipatiort No.8 of all public16. The requirement to keep minutes of proceedings consultation meetings and decisions taken. SECOND SCHEDULE: FORM OF A PUBLIC PETITION (Section 9) TO: The Machakos County Government/Assembly WE/I, th e undersigned and humble Petitioner(s) ...,..... ............. (Here insert the names rtr description of the petitioner or petitioners of ....( address irtcluding their status: residents of a particLilar area, workers, particular part of the communitv, ntinority or marginalised group etc.) DRAW the attention of the County GovernmenUAssembly to the following: (Here, briefly state the reasons underlying the petition and request for the intervention of the Govenunent/Assentbly by outlining the grievances or problents and sumntarizing the facts which the petitioners wish the G ov e nun e nt/As s e mbly to c o ns ide r ) THAT: (Here confirm that efforts have been made to have the matter addressed by the relevant body, and it failed to give satisfacton, response.) THAT: (Here confirm that the issues in respect of which the petitiort is made are not pending before any court of law,, or constitutional or legal body.) THEREFORE your humble petitioners PRAY that the Government / Assembly (Here, set out the prayer, by stating in sunmrury w,hat action the petitioners wish the Govenmtent/Assembly to take or refrainfront) and your PETITIONERS will ever Pray. 337 No.8 Machakos County Public Participation 2014 Subsequent Pages PETITION conc'erning (Here, repeat the summary infirst page) *This form may contain such variations as the circumstances of each case may require. Name of petitioner Full Address National ID or Passport No. Signature/Thumb Print