Climate Change (Public Participation and Access to Climate Change Information) Regulations, 2023

Section 1. Short title Section These Regulations may be cited as the Climate Change (Public Participation and Access to Climate Change Information) Regulations, 2023.

Section 2. Interpretation Section In these Regulations unless context otherwise requires— "Act" means the Climate Change Act ( Cap. 387A ); "Cabinet Secretary" has the meaning assigned to it under the Act; "call for comments" means the notice via which the public and relevant stakeholders shall be publicly invited to review and comment on a proposed action; "climate change duties" has the meaning assigned to it under the Act; "comments period" means the period commencing on the date when the comments on a proposed action may be received by the responsible authority or ministry and the last date when the comments on a proposed action may be received; "Council" means the National Climate Change Council established under section 5 of the Act; "Directorate" means the Climate Change Directorate established under section 9 of the Act; "explanatory memorandum" means a statement, prepared by a responsible authority that explains the purpose and operation of the proposed action and includes any documents incorporated in the proposed action by reference and indicates how they may be obtained; "Ministry" means the ministry for the time being responsible for matters related to climate change;...

Section 3. Application of these Regulations Section 3(1)(a) the Council; Section 3(1)(b) the Ministry; Section 3(1)(c) the Directorate; Section 3(1)(d) public entities at all levels of government with duties under section 15 of the Act; Section 3(1)(e) private entities with climate change duties under section 16 of the Act; Section 3(1)(f) any other entity conducting activities under or subject to the Act; and Section 3(1)(g) the County Governments. Section 3(2) Where a county government has developed its own public consultation regulations, these Regulations shall prevail pursuant to Article 191 of the Constitution in so far as any inconsistency arises in their interpretation or application.

Section 4. Guiding principles for public consultation Section 4(1)(a) public consultation shall be undertaken within timelines that allow constructive engagement with persons affected by the proposal; Section 4(1)(b) public consultation shall be effective and not merely procedural; and Section 4(1)(c) the contribution of the public shall impact the threshold of decision making on climate change in accordance with subregulation (2). Section 4(2)(a) all relevant stakeholders directly affected by proposed action and the public are adequately consulted; Section 4(2)(b) the responsible authority can demonstrate that sufficient amount of feedback is drawn from the public consultation; and Section 4(2)(c) there is evidence that the feedback received from the public consultation has been considered in developing the proposed action and in the decision made pursuant to the proposed action.

Section 5. Scope of proposed action Section 5(1) A proposed action in relation to the development of strategies laws and policies on climate change shall pursuant to section 24(1) of the Act, be developed through public participation. Section 5(2)(a) introduces new climate change law, policy or guidelines; or Section 5(2)(b) varies or modifies existing climate change law, policy or guidelines.

Section 6. Opportunities for public consultation Section 6(1) A responsible authority shall make appropriate public consultations that provide reasonable and effective opportunities for participation.

Section 7. National Climate Change Action Plan Section The Cabinet Secretary shall, in the review of the National Climate Change Action Plan pursuant to section 13(8) of the Act, conduct public consultation in the manner provided under the Act and these Regulations.

Section 8. Timelines for public consultation Section A responsible authority shall offer the public at least fourteen days from the date of the notice issued under regulation 10, to consider, consult and respond to a proposed action when conducting public consultation.

Section 9. Information relating to the public consultation Section 9(1) A responsible authority shall ensure fair and equal access to the public participation process to all members of the public and stakeholders in the climate change sector. Section 9(2)(a) an interpreter who can translate the information relating to a proposed action into the local language or sign language, for the affected members or stakeholders; or Section 9(2)(b) such reasonable measures as are necessary, to ensure that the members of the public and stakeholders are capable of understanding the proposed action for purposes of giving feedback. Section 9(3) A responsible authority shall develop and maintain an online platform that is accessible and simple enough for the members of the public and stakeholders to access all the necessary information relating to a proposed action. Section 9(4) In addition to maintaining the online platform under subregulation (3) the responsible authority shall maintain the information relating to a proposed action in physical form at all the offices of the responsible authority and the County Governments for access by members of the public. Section 9(5)(a) the purpose of the pub...

Section 10. Notice for public consultation Section 10(1) Before commencing the conduct of public consultation, the responsible authority shall publish a notice calling for comments on a proposed action in the manner set out in paragraph 1 of the Schedule to the Act. Section 10(2)(a) posting in social media accounts affiliated to the responsible authority and other digital communication channels; Section 10(2)(b) engaging the community on the information relating to the proposed action; Section 10(2)(c) engaging in public meetings and fora; and Section 10(2)(d) utilising any other public consultation mechanisms that have previously been employed in the locality within which public participation is to be conducted. Section 10(3)(a) a summary of the proposed action; Section 10(3)(b) a statement of the basis or authority for the proposed action; Section 10(3)(c) the commencement and closing period for receiving comments on the proposed action, which shall be a minimum of sixty days in between; Section 10(3)(d) a statement of where the members of the public and stakeholders may freely access the information necessary for proper contextualization of the proposed action; and Section 10(3)...

Section 11. Public hearing Section 11(1) Upon conclusion of the comments period, the responsible authority shall hold a public hearing. Section 11(2) The responsible authority shall issue a notice for a public hearing within fourteen days after the comments period. Section 11(3) The responsible authority shall undertake a public hearing within a realistic timeframe from the date of the notice issued under subregulation (2). Section 11(4) A public hearing shall be conducted subject to the prevailing health and safety legislation. Section 11(5) A responsible authority shall record the feedback received from the conduct of public hearing in Form 3 set out in the Schedule.

Section 12. Analysis of comments after public consultation Section 12(1) Upon conclusion of the public participation exercise the responsible authority shall, in demonstrating that the feedback from the public has been adequately considered under regulation 4(2)(c), collate the comments received during the conduct of the public consultation. Section 12(2)(a) without bias, critically analyse the comments from the public consultation; and Section 12(2)(b) record the decision made on the proposed action, including the reasons for including and excluding any recommendation. Section 12(3) A responsible authority shall, within ninety days after the conclusion of the conduct of public participation, publish a report on the analysis of public consultation in the manner set out in Form 4 set out in the Schedule.

Section 13. Analysis of non-consultation Section 13(1) A responsible authority shall conduct an analysis of non-consultation, in relation to the demographics from which the notices referred to in these Regulations were issued but the quality and quantity of comments received were insufficient. Section 13(2) Upon conclusion of the analysis conducted under subregulation (1), the responsible authority shall prepare a report which shall propose possible measures to improve subsequent public participation in the identified demographics.

Section 14. Outcome of public consultation Section In addition to the reports prepared under regulation 12 or 13, a responsible authority shall prepare an explanatory memorandum upon conclusion of the conduct of public consultation.

Section 15. Publication of decision made Section on its official website; and

Section 16. Maintenance of information on climate change Section 16(1) Pursuant to section 24(4) of the Act, the Council and the Directorate, shall maintain relevant, current and accurate information on matters relating to climate change. Section 16(2)(a) all the strategies, laws and policies on climate change in Kenya; Section 16(2)(b) proposed actions; Section 16(2)(c) global trends in strategies, laws and policies on climate change; and Section 16(2)(d) all international instruments on climate change that are ratified by Kenya. Section 16(3) The Council and the Directorate may request the production of any information on matters relating to climate change held by a public or private entity, where the Council or Directorate considers such information necessary for the conduct of public consultation. Section 16(4) A responsible authority shall maintain the information on matters relating to climate change in physical form at its offices and may publish such information on its official website. Section 16(5) A responsible authority may avail information on matters relating to climate change to a member of the public upon request and in a reasonably expeditious, simple and accessibl...

Section 17. Database of stakeholders for public consultation Section Every Responsible Authority shall prepare and maintain a database of all the relevant stakeholders to be consulted in a standard public consultation and shall be guided by such mapping to ensure that adequate consultations have been made.

Section 18. Marginalized groups Section 18(1)(a) women; Section 18(1)(b) youth; Section 18(1)(c) persons living with disabilities; and Section 18(1)(d) marginalised communities. Section 18(2) A responsible Authority shall ensure that the database developed under regulation 17 shall include a mapping of the specialized groups of persons listed in subregulation (1). Section 18(3) The Directorate shall maintain records of Indigenous Knowledge Systems of different regions in Kenya and such records shall be made easily accessible to the public.

Section 19. Public awareness Section 19(1)(a) the strategies, laws and policies relating to climate change; and Section 19(1)(b) the right to participate in decision-making on the strategies, laws and policies relating to climate change. Section 19(2) In every two years, the Directorate shall submit a report to the Cabinet Secretary, on the steps it has taken to comply with subregulation (1) and such report shall include the steps the Directorate has taken to improve the quality of public consultation.

Section 20. Reporting by Directorate Section 20(1) The Directorate shall submit a bi-annual report to the Cabinet Secretary concerning its functions in relation to public consultation and the information on climate change maintained by the Directorate. Section 20(2) The report under subregulation (1) shall include an assessment of the state of public consultation in the climate change sector, its challenges and recommendations for improvement. Section 20(3)(a) the means of public consultation utilized by the Directorate in the preceding two years; Section 20(3)(b) the challenges faced while conducting public consultation; Section 20(3)(c) the efforts made by the Directorate to improve the conduct of public consultation; Section 20(3)(d) the steps taken to improve the internal capacity of the Directorate; and Section 20(3)(e) comparative studies done with other jurisdictions with a view to improve the conduct of public consultation in climate change matters. Section 20(4) The Directorate shall ensure that the report and related records are maintained effectively and are accessible by the public in the manner specified under section 24(5) of the Act.