Review, Amendment and Harmonization of the Local Government Act with other Acts of Parliament Third Submission to the Task Force by The Consultative Group on Participatory Local Governance Nairobi, Kenya 2 August, 2001 Introduction Part I:   Kenya’s Commitments to Participatory Governance in International Law Part II:   Case Studies – The Philippines, Bolivia and South Africa Philippines: Local Government Code (1991) and Naga City Empowerment Ordinance (1995) Bolivia: Popular Participation Law (1994) South Africa: Municipal Systems Act (2000) Introduction This submission to the Task Force on the Review, Amendment and Harmonization of the Local Government Act with other Acts of Parliament is made by the Consultative Group on Participatory Local Governance (CGPLG), a small group which draws together representatives of a number of organisations, both governmental and non-governmental, with an interest in promoting participatory governance at the local level. This is the third submission by the CGPLG to the Task Force.  Its initial submission focused on two objectives: first, to outline what participatory local governance embraces, why it is important, who are the stakeholders, and how it can be integrated into the operations of the local authority working in collaboration with its partners; and, second, to contribute to the debate on how the current Local Government Act (Cap265) can be amended to incorporate the principles and practices of participatory local governance. The Group’s second submission focused further on the latter objective by identifying specific “entry points” within the existing Local Government Act for introducing principles and practices of participatory local governance and recommending proposed text for inclusion in the revised legislation. The purpose of the present submission is twofold.  First, its purpose is to draw attention to Kenya’s commitments to participatory governance in international law and in commitments it has made at various international conferences sponsored by the United Nations.  A major conclusion is that Kenya has legally committed itself to participatory governance and that this commitment should be reflected, through specific mechanisms and language, in the Local Government Act. Second, the paper highlights the participatory elements of legislation from The Philippines, Bolivia and South Africa.  The paper quotes liberally from the relevant legislation in the hope that some of the text and mechanisms may prove useful in the process of preparing a revised Local Government Act that enshrines participatory governance.  A theme in the case studies is the need for capacity-building at both the municipal and community levels to ensure that participation is effective.   Part I:   Kenya’s Commitments to Participatory Governance in International Law Kenya has ratified without any significant reservations the three most important legally binding international conventions addressing the different aspects of participatory governance. The conventions and the dates of ratification are: International Covenant on Civil and Political Rights (ICCPR) (01/05/72) International Covenant on Economic, Social and Cultural Rights (ICESCR) (01/05/72). Reservation to art. 10 (2). Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (09/03/84) Rights safeguarded in the above mentioned conventions are legally enforceable in Kenya.  The current section of the paper will review the main articles of these three conventions that address participatory governance.  A short analysis of the implications of these articles follows. Kenya’s Key Legal Commitments to Participatory Governance 1. Freedom from discrimination As stated the ICCPR art. 2 (1): "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". Further, as stated in the ICCPR art. 3: "The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant". Further, as stated in the CEDAW art. 7: "States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; (b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government; (c) To participate in non-governmental organizations and associations concerned with the public and political life of the country". 2. Freedom of association As stated in the ICCPR art. 22 (2): "Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests".   3. Right to peaceful assembly As stated in the ICCPR art. 21: "The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others". 4. Freedom of opinion and expression and right to impartial information As stated in the ICCPR art. 19 : (1) Everyone shall have the right to hold opinions without interference. (2): "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice". 5. Right to vote and take part in public affairs As stated in the ICCPR art. 25: "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country". 6. Right to adequate standard of living As stated in the ICESCR art. 11(1): "The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent". The above mentioned treaty obligations indicate that participatory governance is characterized by inclusiveness, by providing the same rights to all the citizens of the country without any reservations besides those based on law. However, participation is not defined as a passive exercise but as a duty to the community to which one belongs, as is stated in the Preamble of the ICCPR: "Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant". To make the active participation of all citizens possible, Kenya has committed itself under the art. 11(1) of the ICESCR to provide these people means to the adequate standard of living so that excluded groups, such as the poor, can participate in the decisions that affect their lives.   Commitments to Participatory Governance at International Conferences The means to the efficient participation of all individuals have been stated in several international conferences. Even though these commitments are not legally binding in nature, they bear strong policy implications. In the Social Summit+5 in July 2000, it was stated that the decentralization of administration and the development of local and municipal authorities are means to the creation of inclusive and participatory societies.  The commitment to good governance within each country was repeated in the United Nations Millennium Declaration as a strategy for eradicating poverty. Participating states also stated to work towards more inclusive political processes, allowing genuine participation by all citizens in all countries.  At the Istanbul+5 Conference in New York in June 2001, the same commitment was repeated, but specifically to combat urban poverty through transparent, responsible, accountable, just, effective and efficient governance of cities and human settlements. Conclusion: Kenya has Committed itself to Promote Participatory Governance Under the above-mentioned international human rights conventions, Kenya has committed itself to the key aspects of participatory governance and it has repeated this commitment in recent international conferences by stating that participatory governance is a means to inclusiveness and poverty eradication.   National legislation is a key mechanism for translating international legal commitments into practice. Kenya’s commitments to participatory governance, therefore, should be reflected through specific mechanisms and language in the Local Government Act.  By doing so, Kenya will be able to report to the various United Nations human rights monitoring bodies that it is implementing its commitment to the realization of the full complement of human rights in Kenya.   Part II:   Case Studies – The Philippines, Bolivia and South Africa The following section reviews legislation from The Philippines, Bolivia and South Africa, highlighting the elements that support participatory governance.  Where possible, specific language from the legislation is presented. 1.  The Philippines: Local Government Code (1991) Decentralisation and local autonomy has been a continuing issue in central-local relations in the Philippines for the last fifty years. Despite constitutional provisions promoting local autonomy, historical antecedents reflect centralism as the main feature of governance. The 1991 Local Government Code seeks to expand the powers and prerogatives of local governments, increase their share of the national income, expand their sources of local revenue, liberally interpreting the sharing of power in favour of local government: Any provision on a power of a local government unit shall be liberally interpreted in its favour, and in case of doubt, any question thereon shall be resolved in favour of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favour of the local government unit concerned; (Section 5 (a)). One of the hallmark features of the Local Government Code is its efforts to institutionalize participatory governance.  In its Declaration of Policy, the Code states: It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions” (Section 2, Declaration of Policy (c)) The Code mandates NGO participation in the various local councils: 1. Barangay [Village] Development Council (BDC).  NGO representation should make up at least one-fourth of the total number of members in a complete, organised council (Section 107 (a, ii)) 2. Local Pre-qualification, Bids and Awards Committee (PBAC). Two representatives from the NGOs who are also representatives from the BDC (Section 37 (a, iv)) 3. Local School Board. One representative from the SK, one from the PTA, one from the teachers’ organisation, and one from the non-academic employees’ organisation of the public schools (Section 98 (b, i)) 4. Local Health Board. One representative from an NGO involved in the delivery of health services, and; (Section 102 (a, i)) 5. Local Peace and Order Council.  In accord with the established EO 309 (Section 116) Local Government Code in Action: Naga City’s Empowerment Ordinance A success story in the implementation of the Local Government Code Naga City’s enactment of its Empowerment Ordinance in 1995 which led to the design and implementation of several initiatives involving partnership between local government and civil society.  The success story, however, did not start out that way. The devolution of powers pursuant to the 1991 Local Government Code caught the City government unprepared to manage and deliver certain basic services (like health and environmental protection) mainly due to inadequate resources and limited manpower. The City chose to develop its own “Empowerment Ordinance” to establish the structure to achieve active partnership between the city government and the people of Naga City.  The Ordinance spells out the norms of accreditation of NGOs and their rights and privileges. Accredited NGOs are deemed eligible for joint ventures with the city government to engage in various municipal tasks like infrastructure delivery, capacity- building and livelihood projects, and other activities that enhance the economic and social well-being of the people (see Section 7). The Ordinance institutionalises all accredited NGOs under an autonomous People’s Council (the Naga City People’s Council or NCPC). Among the powers of the NCPC are: 1. Vote and participate in the deliberation, conceptualisation, implementation and evaluation of projects, activities and programs of the city government; 2. Propose legislation; 3. Participate and vote at the committee level of the city legislature; and 4. Act as people’s representative in the exercise of their constitutional rights to information on matters of public concern and of access to official records and documents (Section 11) The Ordinance mandates sectoral representation in the Sangguniang Panlungsod (city legislature) from each of the non-agricultural labour, women, and urban poor sectors of the city that shall be elected from among the members of the accredited NGOs and POs in each sector (Section 15). With external capacity-building support, Naga City initiated a series of successful projects in partnership with civil society: The Naga City River Watershed Plan; The Naga City Solid Waste Management Plan; and the City Health Development Plan.   2. Bolivia:  Popular Participation Law (1994) Historically, Bolivia’s governments have been dominated by the executive, even when elected democratically. In 1994, the Bolivian Constitution was altered to acknowledge that Bolivia is a multiethnic and pluri-cultural society. In April, the same year the Republic of Bolivia enacted the Popular Participation Law (LPP-Ley de Participacion Popular) that acknowledges the importance of indigenous population. This law along with the Law of Administrative Decentralization (LAD-adm) constitute the legal framework of what has often been called the “Bolivian model of decentralisation.” The Law of Popular Participation (Ley 1551 of 1994) decentralises the state by redistributing resources and responsibilities to municipal governments and it involves social organisations in the planning, execution, and monitoring of municipal performance. The Law establishes 311 municipal governments , each being a section of the province and having rural and urban jurisdiction. All municipalities are endowed with an elected legislature based on universal suffrage, a municipal executive consisting of a mayor/property manager (usually elected by legislature) and an administration. The Law also provides the legal framework for local institutions present inside municipal boundaries (which were not recognised by the state before the passage of the LPP) to participate in the following : Planning Activities, specifically, to draw up ‘participatory plans’ to determine how the new resources made available by the LPP should be spent by municipal governments.   Management Activities, specifically, the management of development projects spawned by the participatory plans; and   Auditing Activities, specifically, of municipal authorities to ensure that the various stipulations of the LPP are respected, and in particular that funds are properly disbursed and accounts kept transparent. Provisions for Participatory Urban Governance One of the most innovative provisions in the Law of Popular Participation is the legal recognition of territorially based, grassroots groups (OTBs – Organizaciones territoriales de Base). The present law recognises, promotes and consolidates the Popular Participation process of articulation for the indigenous communities, peasant communities and urban communities, in the legal, political and economic life of the country (Article 1) The OTBs can be constituted in the form of following territorially organised groups: Indigenous Communities Campesino (or peasant) Communities Neighbourhood Groups (junta vecinales) Only one group is recognised as an OTB per geographic area representing the community at large. The Law respects the traditional and customary norms of each community in electing its officials and achieving community consensus. (Line 1, Article 2). Once legally recognised, the OTBs attain the rights and obligations assigned by the Bolivian State. The OTBs have the ability to propose, request, control, and supervise the execution of work projects and the provision of public services in accordance with community needs as regards education, health, sports, basic sanitation, small-scale irrigation, local roads, and urban and rural development; they can propose changes in or the ratification of educational and health authorities within their territory; and they have access to information on the resources allocated to Popular Participation (Article 12).  The OTBs also have a statutory obligation to promote fair representation of women and men in legal proceedings. The acceptance of traditional organisations is complemented by the creation of a Vigilance Committee (Comite de Vigilancia, CV) at each municipal level to be elected directly by the OTB. The Vigilance Committees (CVs) act as a link between the municipal government and local OTBs in monitoring how resources are managed, both in the process of participatory planning sanctioned by the LPP and in the implementation of projects.   The specific responsibilities of the CVs are: Oversee that municipal resources are invested equitably between urban and rural populations; Be mindful that municipal government do not spend more than 10% of Popular participation funds on operating expenditures; Oversee the budget for Popular Participation funds; and Inspect the performance of the municipal government in its spending and investment and make the results of the inspection public, providing one copy of the results to the central governments so that it can determine the constitutionality of municipal action (Article 10). In case of any irregularities, or complaints against the municipal administration, the CV is required to report to the Finance Ministry, which is in turn required to investigate and pass a report to the Congress in 30 days. If the complaint is accepted and proven, the municipality’s funding can be frozen indefinitely by the Congress. Some Lessons-Learned from Implementation One of the most crucial issues hindering the participatory process is the politicisation of the OTBs. The concept of ‘participation’ prevalent in the LPP discourse does not extend to the political sphere, at least not directly. OTBs cannot present their own independent lists of candidates.   This stretches the paternalistic rule of political parties to the municipalities. In many cases, however, it was members of the local elite that were elected for the first municipal governments in 1995.  In both the cases, the inclusionary objectives of the LPP were defeated. One of the main criticism of the actual implementation of the plan is that development funds are being distributed to all municipalities that have filed an annual operative plan with the central government, regardless of whether there is a functioning Vigilance Committee (CV) to provide accountability and transparency. This left these funds susceptible to corruption. Another weakness has been the lack of capacity on the parts of the grassroots institutions. For example, it has been difficult to recruit members of CV personnel with the required technical qualifications. Also, there is a conflict of interest or job function between the local municipal council and the CV as both are designed to monitor the municipal budgets. Moreover, the committee members receive no financial remuneration for their efforts.   3. South Africa: Municipal Systems Act (2000) The six years since South Africa’s historic elections have largely been devoted to policy development and legislative reforms to completely re-conceptualise and redesign the local government system. In March 1998, the South African government released its White Paper on Local Government. Within the framework of the Constitution, this Paper established the basis for a new developmental local government system and a formal policy direction.  At the centre of the new policy framework for local government is the notion of developmental local government. It is defined as local government, which ‘works with local communities to find sustainable ways to meet their social, economic and material needs and improve the quality of their lives’.  The White Paper places significant emphasis on participatory local governance, particularly the need to include all actors in planning and decision-making: The White Paper on Local Government recognizes Participatory Governance and Inclusiveness as one of the central objectives of municipal institutions. There is special mention of the participatory needs of the socially disadvantaged groups. Municipalities need to be aware of the divisions within local communities, and seek to promote the participation of marginalised and excluded groups in community processes. For example, there are many obstacles to the equal and effective participation of women, such as social values and norms, as well as practical issues such as the lack of transport, household responsibilities, personal safety, etc. Municipalities must adopt inclusive approaches to fostering community participation, including strategies aimed at removing obstacles to, and actively encouraging, the participation of marginalised groups in the local community. A second White Paper, Batho Pele (People First) was issued by the Minister for Public Service and Administration and provides a useful approach for building a culture and practice of customer service for local government.  The White Paper is based on 8 principles to foster a sense of customer service in local government: 1. Consultation: Citizens should be consulted about the level and quality of public service they receive, and, where possible, should be given a choice about the services which are provided. 2. Service standards: Citizens should know what standard of service to expect. 3. Access: All citizens should have equal access to the services to which they are entitled. 4. Courtesy: Citizens should be treated with courtesy and consideration 5. Information: Citizens should be given full and accurate information about the public services they are entitled to receive. 6. Openness and transparency: Citizens should know how departments are run, how resources are spent, and who is in charge of particular services. 7. Redress: If the promised standard of service is not delivered, citizens should be offered an apology, a full explanation and a speedy and effective remedy; and when complaints are made citizens should receive a sympathetic, positive response. 8. Value-for-money: Public services should be provided economically and efficiently in order to give citizens the best possible value-for-money   While policy papers, the White Paper provide a useful guide to the thinking behind a key legislation adopted to translate policy into practice: the Municipal Systems Act (2000). Participatory Governance in the Municipal Systems Act, 2000 The Municipal Systems Act 2000 seeks to establish the basic principles and mechanisms to give effect to the notion of ‘developmental local government’ as envisaged in The White Paper on Local Government. It aims to assign powers of general competence to local government, and manage the process of decentralising functions to local government to ensure proper co-ordination of the decentralisation process and realisation of the principles of co-operative governance. Participatory governance is enshrined in the Act from the definition of first principles.  Municipalities are taken to include both local government and citizens: A municipality consists of: I. The governing structures and administration of the municipality: and II. The residents and communities in the municipality.’ (Section 2(c)) From this definition, the Act goes on to spell out the rights and responsibilities of citizens and communities within a municipality: a) to demand that the proceedings of the municipal council and its committees and functionaries are: open to the public; conducted impartially and without prejudice; and untainted by personal self-interest; b) to submit written recommendations, representations and complaints to the municipal council, its committees and functionaries; c) to participate in the decision-making processes of the municipality through mechanisms and in accordance with processes and procedures provided for in this Act; d) to be informed of decisions of the municipal council, its committees and functionaries affecting their rights, including their property; e) to regular disclosure of the state of affairs of the municipality, including its finances; f) to prompt responses from the municipal council, its committees and functionaries to written complaints; and g) to the use and enjoyment of public facilities and municipal services which the municipality provides to residents. (Section 5 (i)) Chapter Three of the Municipal Systems Act explicitly deals with development of culture of public participation. The Act makes it obligatory for the municipal councils to establish appropriate mechanisms that enable civic engagement in the form of consultation, petitions, public hearings and surveys. At the same time, the Act recognises the needs of disadvantaged groups. When establishing participatory mechanisms, the municipal councils must take into account special needs of: People who can not read or write People with disabilities Other disadvantaged groups (Section 8 (ii)) The Act also mandates the capacity building of residents and communities by the municipal council.   Two Tools for Participatory Governance: Integrated Development Plans (IDP) and Performance Management Systems (PMS) In terms of strategic planning, every municipal council must adopt a single, inclusive plan for the development  of its municipal area within the first 12 months of its elected term. The Act makes it clear that the entire IDP process must rest on a meaningful and multi-level participation process to ensure that citizens have a direct say about its outcome. The IDP process must determine methods and procedures I. to consult communities, residents and other stakeholders on their development needs and priorities; and II. to provide for their participation in the drafting process and review of the integrated development plan. (Section 33(1b)) A second instrument to increase productivity and greater accountability provided for in the Municipal Systems Act is the performance management system (PMS). The objective at one level is to monitor the quality of performance of municipal staff, but at another level to set appropriate performance indicators as a yardstick to address the developmental goals as outlined in the IDP. Another dimension of PMS is designed to mandate processes of monitoring and reporting to the citizenry. A municipal council must make known, internally and to the general public, the key performance indicators and performance targets set by it for purposes of its performance (Section 47) While South Africa’s experience in implementing its legislation is limited, it is hoped that some of the features of its laws will provide useful examples of text that could support the process of incorporating participatory governance into the review of the Kenya Local Government Act.