Review, Amendment and Harmonization of the
Local Government Act with other Acts of Parliament
Third Submission to the Task Force
The Consultative Group on Participatory Local Governance
2 August, 2001
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)
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
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.
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
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
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
1. The Philippines: Local Government
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,
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
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).
2. Propose legislation;
3. Participate and vote at the committee level of the city legislature;
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)
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
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
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:
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.
Oversee that municipal resources are invested equitably between urban and
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).
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
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
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
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,
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
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:
From this definition, the Act goes on to spell out the rights and responsibilities
of citizens and communities within a municipality:
I. The governing structures and administration of the municipality:
II. The residents and communities in the municipality.’ (Section 2(c))
a) to demand that the proceedings of the municipal council
and its committees and functionaries are:
b) to submit written recommendations, representations and complaints to
the municipal council, its committees and functionaries;
open to the public;
conducted impartially and without prejudice; and
untainted by personal self-interest;
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
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:
The Act also mandates the capacity building of residents and communities
by the municipal council.
People who can not read or write
People with disabilities
Other disadvantaged groups (Section 8 (ii))
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
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.
II. to provide for their participation in the drafting process and
review of the integrated development plan. (Section 33(1b))
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.