The management of intergovernmental disputes in the Kenyan devolved system of government since 2013

Bachelor Thesis , 2017 , 99 Pages , Grade: B

Law - Miscellaneous

This legal research paper investigates the management of intergovernmental disputes in the Kenyan devolved system since 2013 when the first governments took power under the new Constitution of Kenya, 2010. The constitutional, legal and institutional framework for managing intergovernmental disputes in the Kenyan devolved system is examined. The process of management of intergovernmental disputes effectively for the realization of the objects of devolution in Kenya is accessed. South African jurisprudence on the management of intergovernmental disputes is used because it provides instructive lessons on interpreting the Kenyan constitutional provisions on the management of intergovernmental disputes. The result of this study is that the process of management of intergovernmental disputes in the Kenyan devolved system is a three-tier process.

The starting point in the management of intergovernmental disputes is to prevent, minimize and avoid such disputes through intergovernmental relations and cooperative government. Secondly, where avoidance fails, intergovernmental disputes are formally declared and the governments are obligated to resolve such disputes through Alternative Dispute Resolution (ADR) mechanisms so as not to strain their relationships, amongst other reasons. Lastly, the governments are allowed to access the courts as the last resort after all reasonable efforts to resolve such disputes through ADR mechanisms have completely failed. The jurisprudence emerging from the Kenyan courts has been useful in this research. South African jurisprudence on the management of intergovernmental disputes has also been useful on providing instructive lessons on how the Kenyan constitutional provisions on the management of intergovernmental disputes can be interpreted.

This legal research paper concludes that purposive interpretation of the constitutional provisions dealing with the management of intergovernmental disputes must be adopted. This is because one of the ways through which the objects of devolution can be achieved in the Kenyan devolved system is through the efficient management of intergovernmental disputes.

TABLE OF CONTENTS

ACKNOWLEDGMENTS. i

LIST OF STATUTES. iii

LIST OF CASES. iv

LIST OF ABBREVIATIONS. v

ABSTRACT. vii

CHAPTER ONE

INTRODUCTION.
1.1 Background
1.2 The Problem.
1.3 Research Question
1.4 Research Hypothesis
1.5 Research Objectives
1.6 Theoretical Framework
1.7 Literature Survey
1.8 Justification of the Study
1.9 Scope of the study
1.10 Research Methodology
1.11 Chapter Outline
1.12 Defining Concepts
1.12.1 Devolution
1.12.2 Intergovernmental relations
1.12.3 Intergovernmental disputes

CHAPTER TWO.

CONSTITUTIONAL, LEGAL AND INSTITUTIONAL FRAMEWORK FOR MANAGING INTERGOVERNMENTAL DISPUTES
2.1 Introduction
2.2 Constitutional and legal framework for the management of intergovernmental disputes
2.2.1 The Constitution of Kenya, 2010
2.2.2 The Intergovernmental Relations Act, 2012
2.3 Institutional framework for the management of intergovernmental disputes
2.3.1 Institutions established under the Intergovernmental Relations Act, 2012
2.3.1.1 National and County Government Coordinating Summit
2.3.1.2 Council of County Governors
2.3.1.3 Intergovernmental Relations Technical Committee
2.3.1.4 Intergovernmental Relations Secretariat
2.3.1.5 Intergovernmental Relations Sectoral Forums
2.3.2 Institution established under the Public Finance Management Act, 2012
2.3.3 Institution established under the Transition to Devolved Government Act, 2012
2.3.4 Institutions established under the Urban Areas and Cities Act, 2012
2.3.5 Institutions established under the County Government Act of 2012
2.3.6 Institutions established at the County Level
2.3.6.1 County Intergovernmental Forum.
2.3.6.2 County Assembly Forum.
2.3.6.3 Association of County Executive Committee Members
2.3.7 Ministry of Devolution and Planning
2.3.8 Shared Institutions
2.3.9 National State Corporations
2.4 Concluding remarks

CHAPTER THREE

MANAGING INTERGOVERNMENTAL DISPUTES
3.1 Introduction
3.2 Prevention of intergovernmental disputes
3.2.1 Intergovernmental relations
3.2.1.1 Principles of intergovernmental relations
3.2.1.1.1 Distinctness
3.2.1.1.2 Interdependence
3.2.1.2 Types of intergovernmental relations
3.2.1.2.1 Vertical intergovernmental relations
3.2.1.2.2 Horizontal intergovernmental relations
3.2.1.2.3 Fiscal intergovernmental relations
3.2.1.2.4 Sectoral intergovernmental relations
3.2.2 Cooperative government
3.2.2.1 Justification for cooperative government
3.2.2.2 Obligations of cooperative government
3.2.2.2.1 Cooperation
3.2.2.2.2 Consultation
3.2.2.2.3 Respect of governments and institutions
3.2.2.2.4 Respect of powers and functions
3.2.2.2.5 Assistance and support
3.2.2.2.6 Liaisons between governments
3.2.2.2.7 Avoidance of judicial litigation of intergovernmental disputes
3.3 Resolution of intergovernmental disputes
3.3.1 ADR mechanisms
3.3.1.1 Negotiation
3.3.1.2 Mediation
3.3.1.3 Arbitration
3.3.1.4 Other ADR mechanisms
3.3.1.4.1 Conciliation
3.3.1.4.2 Independent commission of inquiry
3.3.1.4.3 Neutral evaluation and expert determination
3.3.2 Civil litigation
3.4 Concluding remarks

CHAPTER FOUR

KENYAN EXPERIENCE VERSUS SOUTH AFRICAN JURISPRUDENCE
4.1 Introduction
4.2 Issues arising from management of intergovernmental disputes
4.2.1 Jurisdiction of the courts
4.2.2 What constitutes an intergovernmental dispute?
4.2.3 Parties to an intergovernmental dispute
4.3 Concluding remarks

CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS
5.1 Introduction
5.2 Conclusion
5.2.1 Major argument
5.2.2 Lessons from South Africa
5.3 Recommendations
5.4 Concluding remarks

BIBLIOGRAPHY

ACKNOWLEDGMENTS

I would like to thank the Almighty God for giving me the strength and intellectual power to complete this legal research paper. The completion of this research paper would not have been successful without the efforts of several people. To my dear mother, Rachel Pahe, I offer my sincere gratitude to her for the moral, financial and material support she has been providing me with in my education from an early age despite the demise of my father. She has been a source of inspiration to my life.

I also acknowledge my siblings Nyale, Kazungu, Amani, Steve, Everline, Sarah and Amina who encouraged me to employ the best possible efforts in this research paper. To all the family members of the large extended family of Mwakuni who supported me throughout my years of study, I love you all.

I would like to thank the teaching staff of Moi University, School of Law for imparting fundamental legal knowledge in me that has greatly aided me in pursuing this research paper. I wish to acknowledge the invaluable assistance and guidance of Dr John Mutakha Kangu who supervised the carrying on of this study to completion. Special gratitude goes to the supervisor for his unending support and guidance in writing this paper despite having a busy schedule as a renowned constitutional and devolution scholar and expert. I was privileged in attending all his seminars on ‘Devolution and Counties Law,’ in my third year of study where my knowledge on devolution law was concretised. As the old Swahili saying goes: Samaki mkunje angali mbichi (Fold the fish while it is still fresh or raw), the supervisor had the opportunity to fold me and I’m glad to having learnt good research skills from him in the very beginning of my career.

To all my friends: Sophie Kafya, Anderson Mfano, Isaac Katana, Priesto Juba, Brian Komora, Giddie Trevor, Luka Mwangi, Liz Muthoni, Eva Onwong'a, Joseph Mugo, Omar Bungale, Victor Kaula, Mike Mutinda, Hussein Kusow and many others that I cannot mention by name who in diverse ways helped me throughout my research work, I say, thank you. To the mighty Wachemchi fraternity led by Sir Nem Kibet, I’m indebted to you for your encouragement and support when I almost gave up in my studies. Thank you all, one love.

LIST OF STATUTES

Kenya

Agriculture, Fisheries and Food Authority Act of 2013

Constitution of Kenya, 2010

County Government Act of 2012

Ethics and Anti-Corruption Commission Act of 2012

High Court (Organisation and Administration) Act No-27 of 2015

Intergovernmental Relations Act of 2012

National Police Service Act, 2011

Public Finance Management Act of 2012

Transition to Devolved Government Act of 2012

Societies Act, Cap 108 Laws of Kenya.

Urban Areas and Cities Act of 2012

South Africa

Final Constitution of South Africa, 1996

Intergovernmental Relations Framework Act of 2005

LIST OF CASES

Kenya

County Government of Nyeri v Cabinet Secretary Ministry of Education, Science and Technology and another (2014) eKLR

Dickson Mukwelukeine v Attorney-General & 4 Others Nairobi High Court Civil Petition No- 390 of 2012

In the Matter of the Interim Independent Electoral Commission (2014) eKLR

International Legal Consultancy Group v Senate & Clerk of the Senate, Constitutional Petition No- 8 of 2014 eKLR

Kenya National Union of Teachers v Attorney General and 4 others (2016) eKLR

Okiya Omtatah Okoiti and another v Attorney General and 6 others (2014) eKLR

Robert N Gakuru and others v Governor Kiambu County and 3 others (2014) eKLR

The Institute of Social Accountability (TISA) and another v The Attorney General and 4 others (2015) eKLR

South Africa

Doctors for Life International v Speaker of the National Assembly and others (CCT 12/05) [2006] ZACC 11

Ex Parte President of the Republic of South Africa, in Re: Constitutionality of the Liquor Bill (2000) [Liquor Bill case]

Independent Electoral Commission v Langeberg Municipality (2001) 9 BCLR 883

National Gambling Board v Premier of Kwa-Zulu Natal and others (CCT 32/01) [2001] ZACC 8; 2002 (2) BCLR 156; 2002 (2) SA 715 (21 December 2001)

LIST OF ABBREVIATIONS

Abbildung in dieser Leseprobe nicht enthalten

ABSTRACT

This legal research paper investigates the management of intergovernmental disputes in the Kenyan devolved system since 2013 when the first governments took power under the new Constitution of Kenya, 2010. The constitutional, legal and institutional framework for managing intergovernmental disputes in the Kenyan devolved system is examined. The process of management of intergovernmental disputes effectively for the realization of the objects of devolution in Kenya is accessed. South African jurisprudence on the management of intergovernmental disputes is used because it provides instructive lessons on interpreting the Kenyan constitutional provisions on the management of intergovernmental disputes.

The result of this study is that the process of management of intergovernmental disputes in the Kenyan devolved system is a three-tier process. The starting point in the management of intergovernmental disputes is to prevent, minimize and avoid such disputes through intergovernmental relations and cooperative government. Secondly, where avoidance fails, intergovernmental disputes are formally declared and the governments are obligated to resolve such disputes through Alternative Dispute Resolution (ADR) mechanisms so as not to strain their relationships, amongst other reasons. Lastly, the governments are allowed to access the courts as the last resort after all reasonable efforts to resolve such disputes through ADR mechanisms have completely failed. The jurisprudence emerging from the Kenyan courts has been useful in this research. South African jurisprudence on the management of intergovernmental disputes has also been useful on providing instructive lessons on how the Kenyan constitutional provisions on the management of intergovernmental disputes can be interpreted. This legal research paper concludes that purposive interpretation of the constitutional provisions dealing with the management of intergovernmental disputes must be adopted. This is because one of the ways through which the objects of devolution can be achieved in the Kenyan devolved system is through the efficient management of intergovernmental disputes.

CHAPTER ONE

INTRODUCTION

1.1 Background

Kenya as a Republic¹ adopted a new Constitution on 27th August, 2010 with devolution of political power, functions and resources to the newly formed forty seven counties being one of its most transformative aspects.² Devolution was seen as a good solution to the problems of marginalisation, inadequate service delivery and regional disparities in development which was associated with the highly centralised system of government.³ With devolution, two levels of government were created: the national and county governments⁴ which are ‘distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.’⁵

Based on the foregoing, it is evident that consultation and cooperation between the national and county governments and amongst county governments is inevitable and this calls for consultation and cooperation in the performance of functions and exercise of powers by respecting each other.⁶ This cooperation is meant to enhance intergovernmental relations between the two levels of government and amongst county governments so as to ensure that each government exercises its powers and performs its functions effectively for the benefit of the Kenyan people. The 2010 Constitution correctly forecasted that where cooperation fails, intergovernmental disputes could arise and as a result governments are required to make every reasonable effort to avoid disputes arising or settle or resolve the disputes whenever they arise. The governments are required to prevent and resolve these disputes by means, procedures and mechanisms provided for under the Intergovernmental Relations Act of 2012. This Act provides for the settling of intergovernmental disputes by alternative disputes resolution (ADR) mechanisms, including negotiation, mediation and arbitration.⁷

The Kenyan legal framework has provided for mechanisms of preventing intergovernmental disputes through cooperative government and intergovernmental relations. However, where avoidance fails, there is need to settle or otherwise resolve these intergovernmental disputes expeditiously through the ADR mechanisms provided before resorting to courts so as not to hamper service delivery and development.

The courts are, however, not completely excluded from settlement of disputes. Their services are required as the last resort after all mechanisms have been exhausted. The ADR mechanisms are good because they encourage resolving of conflicts in the political arena, address present and future issues thus maintaining relationships and are more cost and time effective than the civil litigation of such disputes.⁸

This research paper is centred on accessing the management of intergovernmental disputes since the first governments under the 2010 Constitution came into power four and a half years ago. This is important because one of the ways through which the objects of devolution can be achieved is through the efficient management of intergovernmental disputes. The Kenyan courts have had a great opportunity to pronounce themselves on several matters touching on devolution and particularly on intergovernmental disputes and as a result the jurisprudence emerging from the courts will be of great importance throughout this research paper. Furthermore, constitutional jurisprudence from countries which embraced devolution long before Kenya such as South Africa will be used for comparative purposes throughout this research paper.

1.2 The Problem

The devolved system of government in Kenya turned four years in March, 2017 since the first general elections under the 2010 Constitution were held. Immediately after the general elections, the democratically-elected national and county governments took power in the new progressive constitutional order. Contrary to the popular belief, these levels of government are distinct and coordinate and none is subordinate to the other although they are interdependent and must conduct their mutual relations on the basis of consultation and cooperation.⁹

The 2010 Constitution has provided for the powers and functions of legislative and executive structures at both levels of government, the Judiciary and independent commissions. All these institutions work in order to fulfil their constitutional roles and mandates and in the process they interact with each other and as a result of that interaction, intergovernmental disputes arise.¹⁰ For instance, immediately after the 3rd March, 2013 general elections, supremacy battles between the two houses of the national Legislature- National Assembly(NA) and Senate threatened to bring the business to a halt as they fought each other about which house of Parliament was superior and more powerful than the other.¹¹ Elsewhere, the County Governors after being sworn into office demanded a full transfer of the powers and functions from the national government to the counties even though the 2010 Constitution provided for the transition to be realised in phases.¹²

Sincerely speaking, a devolved system of governance is usually complex in nature.¹³ This leads to the problem of fully understanding the powers and functions of the levels of government and how they are to relate with each other for the realisation of the objects of devolution.

Although the Fourth Schedule of the 2010 Constitution has explicitly provided for the powers and functions of each level of government, the transfer of the powers and functions was supposed to be effected in phases. The Parliament was required to enact legislation for the phased transfer over a period of not more than three years from the date of the first general elections of the County Assemblies. The powers and functions assigned to county governments under Article 185¹⁴ were supposed to be transferred to counties from the national government.

Nevertheless, Legal Notices No- 137-183 of 9th August, 2013 published in the Kenya Gazette Supplement No- 116 transferred almost all the powers and functions from the national government to county governments just a few months after the general elections.

From the above scenarios, it is evident that the devolved system of governance in Kenya has faced numerous legal and political challenges and its implementation is one of the main causes of intergovernmental disputes.¹⁵ Intergovernmental disputes revolve around the exercise of powers and the performance of functions conferred by the Constitution and legislations on the two levels of government. This is very sensitive particularly because the realisation of the objects of devolution depends on the exercise of powers and the performance of functions by both the national and county governments. As a result, there is need to resolve intergovernmental disputes as soon as they arise so as not to defeat the objects of devolution. Dr. J.M Kangu correctly predicted that:

Disputes will abound about: the meaning, form and extent of the devolution adopted; the functional and responsibility distribution among the different levels of government; the resource sharing and entitlement by the different levels of government; the institutional arrangements and their roles; the intergovernmental relationships; and the balance of power among the levels of government. Indeed, if the central role of devolution and its intended objectives are to be realised, a comprehensive, coherent and consistent way of resolving some of these disputes is imperative.¹⁶

The World Bank has also warned on the way devolution complicates the management of government by generating conflict over policies and priorities and thus intergovernmental relations must be in place to resolve these problems.¹⁷

Lack of trust and co-operation between governments, lack of information sharing, inadequate legal framework and political expediency have been identified among the challenges facing the implementation of devolution in Kenya.¹⁸ Intergovernmental disputes have adverse effects on service delivery and development to the people. This in turn defeats the objects of devolution. The 2010 Constitution introduced a multi-level system of government known as devolved system that necessitates a framework for intergovernmental relations and dispute resolution. The starting point of management of intergovernmental disputes is to avoid disputes arising. Efforts must be made to avoid intergovernmental disputes at all through intergovernmental relations and the obligations of cooperative government. Where avoidance fails, the parties must settle these disputes effectively through the ADR mechanisms and procedures provided by the 2010 Constitution and the Intergovernmental Relations Act of 2012. The settlement of such disputes should be in the shortest time possible so as not to hamper service delivery and development to the citizenry. The role of courts should not be ousted. The courts have to be accessed as the last resort after the parties have made all reasonable efforts to settle disputes through the ADR mechanisms provided.

But, the problem is that Kenya does not have any history of constitutional jurisprudence and scholarly literature on devolution and particularly on the management of intergovernmental disputes. The repealed Constitution provided for a highly centralised system of government in which the imperial president had exclusive control over political and economic power. Now that Kenya has the devolved system of government, the purposive interpretation of all devolution provisions particularly those dealing with the management of intergovernmental disputes must be adopted for the realisation of the objects of devolution in Kenya.

1.3 Research Question

The main research question which this study seeks to answer is how intergovernmental disputes can be managed for the achievement and realisation of the objects of devolution in Kenya.

Because the aim of this study is to achieve all the research objectives, the main research question is subdivided into the following questions:

(a) What is the constitutional, legal and institutional framework for the management of intergovernmental disputes in the Kenyan devolved system?
(b) Through which methods can intergovernmental disputes be prevented, avoided and minimised in the Kenyan devolved system?
(c) What are the procedures and mechanisms provided by the Constitution and legislations on the resolution of intergovernmental disputes?
(d) What are the issues that are arising from the management of intergovernmental disputes and how Kenya should handle such issues?
(e) What reforms can be proposed on the management of intergovernmental disputes for the realisation of the objects of devolution in Kenya?

1.4 Research Hypothesis

This research paper proceeds on the presumption that there is sufficient constitutional, legal and institutional framework for the management of intergovernmental disputes in the Kenyan devolved system. The 2010 Constitution and the Intergovernmental Relations Act of 2012 have provided for the methods through which intergovernmental disputes can be avoided and where avoidance fails, there are procedures and mechanisms to be followed in resolving such disputes between or amongst the parties before they access a court of law.

It also presumes that both the national and county governments abide by the set out constitutional, legal and institutional framework on the management of intergovernmental disputes in the Kenyan devolved system. Both levels of government make every reasonable effort as required by law in avoiding intergovernmental disputes through intergovernmental relations and the obligations of cooperative government. This research proceeds on the presumption that where avoidance fails, both levels of government usually make every reasonable effort to settle the disputes through the ADR mechanisms and procedures provided by the 2010 Constitution and the Intergovernmental Relations Act of 2012 before resorting to civil litigation.

1.5 Research Objectives

The objectives of this study are to:

(a) Crse reforms on the management of iitically examine the constitutional, legal and institutional framework for the management of intergovernmental disputes in the Kenyan devolved system.
(b) Identify and explain the methods through which intergovernmental disputes can be prevented, avoided and minimised in the Kenyan devolved system.
(c) Explain the procedures and mechanisms provided by the Constitution and legislation on the resolution of intergovernmental disputes in Kenyan devolved system.
(d) Identify the issues arising from the management of intergovernmental disputes in Kenya and how they can be tackled.
(e) Propontergovernmental disputes for the realisation of the objects of devolution in Kenya.

1.6 Theoretical Framework

This legal research paper is founded and premised on the Kelsenian basic norm theory of law. Hans Kelsen is the author of the ‘Pure theory of law’ and ‘basic norm theory.’ Hans Kelsen’s contribution to jurisprudence especially the legal positivism theory is very important in constitutional law theory and practise. According to Hans Kelsen, law is derived from a system of norms and that laws are derived from normative statements. To differentiate between mere norms and norms that constitute law, then any norm claiming to be law must be part of the system of norms and the validity of any such norm derives from a higher set of norms. These higher set of norms derive their validity from even a higher set of norms which eventually lead to the ultimate norm known as the ‘grund norm’ which is the ultimate basis of validity.

This theory of law applies to the Kenyan legal system because it can safely be argued that the ‘grund norm’ is the Constitution of Kenya, 2010.¹⁹ As a result, the 2010 Constitution is the supreme law and all other laws must derive their validity from it for them to be applicable as law.

The 2010 Constitution expressly provides for the components of constitutional supremacy.²⁰ The Constitution is recognised as ‘the supreme law of the Republic and binds all persons and all State organs at both levels of government’.²¹ The second component provides that State authority can only be exercised as authorised by the Constitution.²² This means that no person can have a legal foundation of exercise of State authority other than the Constitution. Article 2(3) provides that the validity or legality of the Constitution is not subject to challenge by or before any court or other State authority.

Lastly, Article 2(4) provides that:

Any law, including customary law, which is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

This is the foundation upon which other laws which do not conform to the Constitution are declared invalid by the courts of law which have the powers to declare certain laws to be unconstitutional.²³

The concept of constitutional supremacy derives its force from the concept of the sovereignty of the people. The concept of the sovereignty of the people is comprised of three elements: the power to constitute a frame of government, the power to choose those to run the government and the powers involved in governing.²⁴

Article 1 of the 2010 Constitution expressly provides that: ‘all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution.’ The 2010 Constitution makes it clear that, sovereign power exists in the hands of the people who may exercise it either directly or through their democratically elected representatives.²⁵ However, it must be noted that sovereign power is delegated to State organs which must perform their functions in accordance with the Constitution.²⁶ These State organs are:

(a) Parliament (Senate and the National Assembly) and the County Assemblies in the Counties;
(b) National Executive and the County Executive Committees in the Counties; and the
(c) Judiciary and independent tribunals.

Lastly, the Constitution requires the sovereignty power of the people to be exercised both at the national and county levels.²⁷

With the above theoretical framework in mind, this legal research paper will rely on the flow chart below to form the basis of all arguments presented there in.

Abbildung in dieser Leseprobe nicht enthalten

Figure: Flow chart for the theoretical framework for the study

1.7 Literature Survey

Generally speaking, there are several works of scholars on the Kenyan constitutional law theory and practise. When it comes to devolution law of Kenya, a few scholars have written on this area due to the novel nature of devolution law of Kenya. Although Kenya first embraced devolution under the 2010 Constitution, Kenyans had to wait until 4th March, 2013 for the general elections to be held for them to democratically elect their representatives to both levels of government under the new devolved system.

M.K Mbondenyi and J.O Ambani in their book²⁸ briefly discuss devolution and conflict management. Their major argument is that it is not uncommon for the national and county governments to differ on the interpretation of laws, the extent of functions and powers or the use of natural resources. They go further to state that the Kenyan Parliament proactively enacted the Intergovernmental Relations Act of 2012 that could in the future forestall these challenges by establishing the National and County Government Co-ordinating Summit, the Council of County Governors and the Intergovernmental Relations Technical Committee as forums of consultations, coordination, dispute resolution and intergovernmental relations.

However, Mbondenyi and Ambani’s book fails to discuss how intergovernmental disputes can be managed in the Kenyan devolved system. This research paper is committed to explain in detail the management of intergovernmental disputes in the Kenyan devolved system since 2013.

Dr. J.M Kangu in his book²⁹ adopts a purposive interpretation of the constitutional provisions dealing with devolution including those dealing with cooperative government and intergovernmental relations. His work incorporates comparative constitutional jurisprudence and scholarly literature from South Africa with the argument that they have provided very instructive lessons in the interpretation of the Kenyan provisions.

This research paper is premised on the purposive interpretation of the constitutional provisions dealing with the management of intergovernmental disputes. Of all the scholars who have written on the devolution law of Kenya, it is Dr. J.M Kangu’s work that adopts and explains in detail the purposive interpretation of the devolution provisions of the 2010 Constitution.

This research paper will also rely on the South African constitutional jurisprudence on the management of intergovernmental disputes as they provide useful lessons on how the Kenyan provisions on devolution can be interpreted for the realisation of the objects of devolution.

The World Bank’s report³⁰ briefly discuss the ways of promoting intergovernmental co-ordination by the two levels of government- national and county, reasons why intergovernmental relations is important and the structure of intergovernmental relations in Kenya.

However, it fails to discuss in details the management of intergovernmental disputes. This research paper will explain in details the management of intergovernmental disputes in the Kenyan devolved system using comparative constitutional jurisprudence from South Africa.

Mugambi Laibuta’s chapter³¹ looks into the application of the principle of cooperative government in the Kenyan context and the role of the Judiciary, the place of judicial interventions in intergovernmental disputes in the 2010 Constitution, separation of powers and its application to intergovernmental disputes. His chapter focuses mainly on the role of the courts in intergovernmental disputes resolution by critically examining the traditional concepts of constitutionalism and separation of powers and how they operate within the structure of the 2010 Constitution, constitutional and statutory framework for dealing with intergovernmental disputes in Kenya and analysing a few selected decisions from the courts relating to intergovernmental disputes.

This research paper appreciates Mugambi Laibuta’s arguments on how the courts and intergovernmental institutions should handle intergovernmental disputes by ensuring that they respect and uphold the doctrine of separation of powers. This would in turn ensure that the performance of functions and exercise of powers constitutionally assigned to the two levels of government are not interfered with by the courts and intergovernmental institutions. It also ensures that courts are only accessed as the last resort in the resolution of intergovernmental disputes after the parties have made every reasonable effort to settle the disputes by the ADR mechanisms provided by the 2010 Constitution and legislation.

The courts and intergovernmental institutions should be seen as facilitators of intergovernmental relations between the two levels of government by ensuring that the courts adopt a purposive interpretation of all devolution provisions to uphold the values and principles of devolution for the realisation of the objects of devolution. Interference with the performance of functions and exercise of powers constitutionally assigned to the two levels of government by the courts and intergovernmental institutions would hamper service delivery and development to the citizenry. This would in turn defeat the objects of devolution.

This research paper discusses the prevention of intergovernmental disputes through intergovernmental relations and cooperative government. The resolution of intergovernmental disputes through the ADR mechanisms and courts is also discussed. Constitutional jurisprudence from South Africa is used for comparative purposes.

1.8 Justification of the Study

This study is justified by the fact that although there exists a wide and broad literature on constitutional law theory and practise of Kenya, there is an apparent scarcity on the devolution law of Kenya especially on the management of intergovernmental disputes. This is because devolution law of Kenya is novel to many Kenyans who are yet to fully understand it. At the heart of the devolution law of Kenya is the distinctness and interdependence of the national and county governments which must conduct their mutual relations on a consultative and cooperative manner.³² This calls for intergovernmental relations and a system of cooperative government as the methods of ensuring that the Kenyan devolved system works effectively to realise the objects of devolution³³ and at the same time prevent intergovernmental disputes.

For the realisation the objects of devolution in Kenya, there must exist well-established and known procedures and mechanisms for the management of intergovernmental disputes. This study is therefore justified due to the scarcity regarding the treatment of the statement of the problem that this study endeavours to address.

1.9 Scope of the study

This research paper examines the management of intergovernmental disputes under the Constitution of Kenya, 2010 and relevant legislations since the year 2013. It appreciates the procedures and mechanisms put in place to prevent intergovernmental disputes and where avoidance fails resolve such disputes.

Intergovernmental relations and cooperative government are discussed as the methods in which intergovernmental disputes can be prevented, avoided and minimised. ADR mechanisms and courts are explained as the methods available for the resolution of intergovernmental disputes. Institutions created by the 2010 Constitution and legislations as forums for the prevention and resolution of intergovernmental disputes including the National and County Government Co-ordinating Summit, the Council of County Governors and the Intergovernmental Relations Technical Committee are also discussed. Constitutional jurisprudence from South Africa is used for comparative purposes.

1.10 Research Methodology

This research paper intends to achieve the above statement of objectives by critically examining and reviewing data obtained from various sources. These sources include, but are not limited to, the Constitution of Kenya, 2010, statutes, case law, books, articles, newspaper articles and reports. Qualitative form of research will form the basis of this research by relying on library research and internet searches which are all desk based. For comparative legal study, the Final Constitution of South Africa, 1996, statutes and case law from the South African jurisdiction will be used.

1.11 Chapter Outline

This research paper entails a total of five chapters.

Chapter one deals with the introductory part of the study. It provides a context of the study setting out the background, the problem, justification of the study, research hypothesis, research question, research objectives, theoretical framework, defining concepts, research methodology, literature review, scope of the study and the chapter outline.

Chapter two examines the constitutional, legal and institutional framework for the management of intergovernmental disputes in the Kenyan devolved system. Institutions established by the Constitution and legislations as forums for the prevention and resolution of intergovernmental disputes including the National and County Government Co-ordinating Summit, the Council of County Governors and the Intergovernmental Relations Technical Committee are discussed in detail.

Chapter three examines the methods in which intergovernmental disputes can be prevented through intergovernmental relations and cooperative government. Where avoidance fails, this chapter explains procedures and mechanisms provided by the Constitution and legislation on how to resolve intergovernmental disputes through ADR mechanisms. The role of courts in the resolution of intergovernmental disputes is also discussed in details.

Chapter four identifies the issues which have arisen in the management of intergovernmental disputes in Kenya since 2013. Solutions to the issues are given by looking at the South African constitutional jurisprudence on similar issues.

The last chapter covers the conclusion and recommendations. This chapter presents a general conclusion on the management of intergovernmental disputes in the Kenyan devolved system since 2013. This presentation is given by outlining the major argument presented in this research paper and the lessons which Kenya can learn from South Africa. Recommendations for reform on the laws governing the management of intergovernmental disputes are also proposed for the realisation of the objects of devolution in Kenya.

1.12 Defining Concepts

The conceptual framework of this research paper sets out three legal terms that are unsettled and hence require fixed working definitions before proceeding with the research paper. These terms are “devolution,” “intergovernmental relations,” and “intergovernmental disputes.” It is necessary to make it clear what each term will mean when used in this research paper right from the beginning.

1.12.1 Devolution

“Devolution”, has been defined as ‘a system of multilevel government under which the Constitution creates two distinct and interdependent levels of government- the national and county that are required to conduct their mutual relations in a consultative and cooperative manner’.³⁴ This research paper will go by this legal definition of the Kenyan “devolution” as presented in the 2010 Constitution.

The Kenyan High Court has also had the opportunity to pronounce itself on what is meant by “devolution” thus:

…Devolution as a form of decentralisation can be defined as the process of transferring decision-making and implementation powers, functions, responsibilities and resources to legally constituted, and popularly elected local governments known as Counties. The Constitution of Kenya, 2010 has established a multilevel system of government often referred to as a devolved system of government.³⁵

Therefore, in this research paper, the term “devolution” will be used synonymously with the term “devolved government”.

The two levels of government that are created by the 2010 Constitution are assigned both exclusive and concurrent powers and functions.³⁶ The exclusive functions and powers render these governments to be distinct and thus relatively autonomous and neither government is a subordinate of the other. However, the concurrent functions and powers inevitably make these governments to be interdependent and as a result they are required to conduct their mutual relations in a consultative and cooperative manner.³⁷ This is where intergovernmental relations and a system of cooperative government come in to ensure the realisation of the objects of devolution and at the same time providing for procedures and mechanisms of preventing and resolving intergovernmental disputes.

1.12.2 Intergovernmental relations

“Intergovernmental relations” is defined as ‘the process of interactions between different governments and between organs of state from different governments in the course of discharging their functions’.³⁸ The intergovernmental relations that will be discussed in this research paper will refer to those relations between the national government and county governments and amongst the county governments or their organs or entities as they are discharging their functions and exercising their powers in the Kenyan devolved system.

Article 6(2) of the 2010 Constitution provides that the national government and county governments ‘shall conduct their mutual relations on the basis of consultation and cooperation’. Again, Article 189 on cooperation between national and county governments, provides for the obligations of consultation and cooperation on both the national and county governments in their performance of functions and exercise of powers as provided by the Constitution and legislation.

1.12.3 Intergovernmental disputes

“Intergovernmental disputes” refers to a ‘dispute’ as a ‘specific disagreement over a matter of fact, law or policy in which one party makes a claim or assertion, while the other party refutes or counter-claims, resulting into a specific impasse over which the parties cannot agree as opposed to a broad and general disagreement about a problem’ and ‘intergovernmental’ refers to the ‘parties to the disputes; that is, between governments’.³⁹

From the definition, it is evident that the intergovernmental disputes entails legal aspects and must be between or amongst different governments or their organs or entities. In the Kenyan devolved system, intergovernmental disputes can be between the national and county governments or amongst the county governments or their organs and entities in the course of performing their functions and exercising their powers conferred to them by the Constitution and legislation.

CHAPTER TWO

CONSTITUTIONAL, LEGAL AND INSTITUTIONAL FRAMEWORK FOR MANAGING INTERGOVERNMENTAL DISPUTES

2.1 Introduction

The drafters of the 2010 Constitution contemplated the tension brought about by a devolved system of government. In order to ease this tension, Kenya opted for cooperative government and intergovernmental relations as provided for under Articles 6(2) and 189. Cooperative intergovernmental relations is the only way through which intergovernmental disputes can be avoided, minimised and prevented. Therefore, entrenching cooperative government and intergovernmental relations in the 2010 Constitution was a good step in ensuring governments at both levels cooperate with one another in performance of their functions and exercise of powers. This cooperation is meant to minimise intergovernmental disputes which is one of the ways through which the objects of devolution can be realized.

Pursuant to Article 189(3) and (4) of the 2010 Constitution, Parliament enacted the Intergovernmental Relations Act, 2012 (IGRA) which lays down the framework for cooperative intergovernmental relations and resolution of intergovernmental disputes. Pursuant to Article 189(2), several institutions meant to be forums for cooperative intergovernmental relations and the resolution of intergovernmental disputes are also established by legislations.

This chapter examines the constitutional and legal framework for the management of intergovernmental disputes. The relevant provisions of the 2010 Constitution and the IGRA, 2012 are critically examined. Intergovernmental institutions established by various legislations as forums for cooperative intergovernmental relations and the resolution of intergovernmental disputes are also discussed.

2.2 Constitutional and legal framework for the management of intergovernmental disputes

The Constitution of Kenya, 2010 under Article 6(2) and 189 lays down the foundation for cooperative government and intergovernmental relations in the Kenyan devolved system. The IGRA, 2012 is the statutory framework for cooperative government, intergovernmental relations and the resolution of intergovernmental disputes.

2.2.1 The Constitution of Kenya, 2010

The 2010 Constitution provides for a devolved system of government in which two levels of government are established- national and county.⁴⁰ Article 6(2) establishes a cooperative system of devolved government in Kenya which can be described as cooperative government. It provides that ‘the governments at the national and county levels are distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation.’ In performing functions and exercising powers constitutionally assigned to them, governments at both levels must observe the two principles of intergovernmental relations- distinctness and interdependence.

Cooperative government in Kenya is concretised by Article 189(1) which provides:

Governments at either level-

(a) perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level;
(b) Support and consult and, as appropriate, implement the legislation of the other level of government; and
(c) Liaise with government at the other level for the purpose of exchanging information, coordinating policies and administration and enhancing capacity.

[...]

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¹ Constitution of Kenya, 2010 Article 4(1) provides that ‘Kenya is a sovereign Republic.’; M.K Mbondenyi & J.O Ambani, The New Constitutional Law of Kenya: Principles, Government and Human Rights (2013) Law Africa 17 [Mbondenyi & Ambani (2013)] explains that in a Republic the people play a central role in governance because it is they who emanate the authority which the leaders exercise on their behalf and the government is meant to serve their welfare.

² Kark E. Klare, ‘Legal Culture and Transformative Constitutionalism,’ South African Journal on Human Rights(1998) 14 defines transformative constitutionalism to mean ‘a long-term project of constitutional enactment, interpretation and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction….connotes an enterprise of inducing large scale social change through non-violent political processes grounded in law.’

³ J.M Kangu, Constitutional Law of Kenya on Devolution (2015) Strathmore University Press 2 [J.M Kangu (2015)]

⁴ Constitution of Kenya, 2010 Article 1(4) provides that ‘The sovereign power of the people is exercised at- (a) the national level; and (b) county level.’

⁵ Article 6(2)

⁶ Article 189(1)

⁷ Article 189(4)

⁸ J.M Kangu (2015) 331

⁹ Constitution of Kenya, 2010, Article 6(2)

¹⁰ Mugambi Laibuta, ‘Judicial Adjudication of Intergovernmental Disputes in Kenya: Defining Judicial Boundaries and Appropriate Remedies,’ 146 in Bosire M. Conrad & Wanjiru Gikonyo (eds) Animating Devolution in Kenya: The Role of the Judiciary (Commentary and Analysis on Kenya’s Emerging Devolution Jurisprudence under the New Constitution (2015) IDLO, Judiciary Training Institute and Katiba Institute [Mugambi Laibuta (2015)]

¹¹ Supremacy battle between the Senate and National Assembly, available at <http://eaclj.org/constitution/20-constitution-feature-articles/136-supremacy-battle-between-the-senate-and-national-assembly.html> (accessed on 16th June, 2017)

¹² Commission on Implementation of the Constitution faults decision to transfer functions to counties, available at <http://www.businessdailyafrica.com/news/Commission-faults-decision-to-transfer-functions-to-counties/539546-1910206-15hvxyx/index.html > (accessed on 16th June, 2017)

¹³ World Bank, Devolution Without Disruption: Pathways to a Successful New Kenya (2012) 12 [World Bank (2012)] stated that ‘The scale, scope and complexity of Kenya’s devolution entails major challenges and risks inherent in the transformation process, but creates new opportunities for improving service delivery at local levels, and strengthening overall accountability to communities.’

¹⁴ Section 15(1) of the Sixth Schedule to the Constitution of Kenya, 2010

¹⁵ Mugambi Laibuta (2015) 151

¹⁶ J.M Kangu (2015) 4

¹⁷ World Bank (2012) 128 stated that: ‘Devolution complicates the management of government. It potentially diffuses accountability between different levels of government; introduces the possibility of mismatched resources, responsibility and authority; and generates conflict over policies and priorities. Mechanisms for intergovernmental relations are key to resolving these collective action problems.’

¹⁸ Law is clear on county governments, lawyers say, available at <http://www.standardmedia.co.ke/m/article/2000091246/law-is-clear-on-county-governments-lawyers-say/?pageNo=2 > (accessed on 16th June, 2017)

¹⁹ Mbondenyi & Ambani (2013) 47

²⁰ Constitution of Kenya, 2010, Article 2

²¹ Article 2(1)

²² Article 2(2)

²³ Article 165 (3) (d) (i) and (ii)

²⁴ Mbondenyi & Ambani (2013) 39

²⁵ Article 1(2)

²⁶ Article 1(3)

²⁷ Article 1(4)

²⁸ M.K Mbondenyi and J.O Ambani, The New Constitution of Kenya: Principles, Government and Human Rights (2013) Law Africa

²⁹ J.M Kangu, Constitutional Law of Kenya on Devolution (2015) Strathmore University Press

³⁰ World Bank, Devolution Without Disruption: Pathways to a Successful New Kenya (2012)

³¹ Mugambi Laibuta, ‘Judicial Adjudication of Intergovernmental Disputes in Kenya: Defining Judicial Boundaries and Appropriate Remedies,’ in Bosire M. Conrad & Wanjiru Gikonyo(eds), Animating Devolution in Kenya: The Role of the Judiciary(Commentary and Analysis on Kenya’s Emerging Devolution Jurisprudence under the new Constitution) (2015) IDLO, Judiciary Training Institute and Katiba Institute

³² Constitution of Kenya, 2010, Article 6(2)

³³ Article 175

³⁴ J.M Kangu (2015) 10

³⁵ International Legal Consultancy Group v Senate & Clerk of the Senate, Constitutional Petition No- 8 of 2014 eKLR para 34

³⁶ Constitution of Kenya, 2010, Fourth Schedule provides for the distribution of functions between the national government and the county governments.

³⁷ Article 6(2)

³⁸ J.M Kangu (2015) 318

³⁹ J.M Kangu (2015) 333-34

⁴⁰ Article 1(4) provides that ‘The sovereign power of the people is exercised at- (a) the national level; and (b) the county level.’

• College: Moi University (Annex School of Law)
• Course: Bachelor of Laws (Honours)
• Grade: B
• Author: Leonard Mwakuni (Author)
• Publication Year: 2017
• Pages: 99
• Catalog Number: V544375
• ISBN (eBook): 9783346163394
• ISBN (Book): 9783346163400
• Language: English
• Tags: Devolution, Intergovernmental relations, Intergovernmental disputes, Cooperative government, Alternative dispute resolution