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
1. 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
2. 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
3. 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
4. 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
5. 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
Research Objectives and Themes
This research paper investigates the management of intergovernmental disputes within the Kenyan devolved system of government. It explores the constitutional, legal, and institutional frameworks established since 2010 to facilitate cooperation and resolve conflicts between national and county governments, ensuring that the objectives of devolution are realized without resorting to unnecessary litigation.
- The constitutional and legal foundation for cooperative government and intergovernmental relations in Kenya.
- The structure and role of various intergovernmental institutions, such as the National and County Government Coordinating Summit and the Council of County Governors.
- The prevention, avoidance, and minimization of disputes through established intergovernmental mechanisms.
- The use of Alternative Dispute Resolution (ADR) mechanisms versus civil litigation for dispute resolution.
- Comparative lessons from South African constitutional jurisprudence to inform the interpretation of Kenyan devolved governance.
Excerpt from the Book
3.3.1 ADR mechanisms
Alternative Dispute Resolution (ADR) mechanisms refer to a collective term for a range of procedures and techniques which are alternatives to the traditional judicial process which are used for resolution of disputes. Article 189(4) of the 2010 Constitution requires the national Parliament to enact national legislation to provide procedures for settling intergovernmental disputes by Alternative Dispute Resolution (ADR) mechanisms, including negotiation, mediation and arbitration. The national legislation which have been enacted by Parliament to give effect to this Article is the Intergovernmental Relations Act of 2012. This Act provides for the procedures and mechanisms of resolving intergovernmental disputes using Alternative Dispute Resolution (ADR) mechanisms such as negotiation, mediation and arbitration. Dr. J.M Kangu, observes that the nature of the dispute must determine the choice of the dispute settlement mechanism by quoting the Professor Nico Steytler, thus:
A Commission of inquiry is preferable where there is a dispute of fact. Conciliation is concerned with the future rather than with the unravelling of the past and is therefore appropriate for accommodating differences in policy. Arbitration and adjudication are again more suitable for disputes involving legal questions.
It is important to note that some disputes may involve a combination of questions of fact, policy and the law, and may require a combination of mechanisms or one mechanism serving more functions. For example, negotiation could be combined with mediation which is then followed by arbitration.
Summary of Chapters
Chapter One: Introduces the research topic, context of devolution in Kenya, the research problem, methodology, and the theoretical framework based on Hans Kelsen’s theory.
Chapter Two: Examines the constitutional, legal, and institutional frameworks, focusing on the Intergovernmental Relations Act, 2012 and various institutional structures for cooperation.
Chapter Three: Analyzes the methods for preventing intergovernmental disputes through relations and cooperative government, as well as resolution processes including ADR and litigation.
Chapter Four: Discusses the Kenyan experience with devolution in light of South African jurisprudence, focusing on jurisdiction, the nature of intergovernmental disputes, and the involved parties.
Chapter Five: Provides a conclusion and specific recommendations for strengthening intergovernmental institutions and improving the legal framework for dispute management.
Keywords
Devolution, Intergovernmental Relations, Cooperative Government, Kenya, Constitution 2010, Intergovernmental Disputes, ADR Mechanisms, Dispute Resolution, Legal Framework, South African Jurisprudence, Constitutionalism, Separation of Powers, Judicial Intervention, Public Participation, County Governments.
Frequently Asked Questions
What is the primary focus of this research paper?
This paper examines how intergovernmental disputes within Kenya's devolved system have been managed since 2013, focusing on constitutional, legal, and institutional mechanisms.
What are the core themes explored in this study?
The core themes include cooperative government, the role of ADR in avoiding litigation, institutional frameworks for intergovernmental relations, and the comparative application of South African jurisprudence.
What is the main goal or research question of the work?
The main goal is to determine how intergovernmental disputes can be effectively managed to achieve the objects of devolution as envisaged by the 2010 Constitution of Kenya.
Which scientific or legal methods were used in this research?
The research is a qualitative study based on desk research, which involves a critical analysis of the Constitution, statutes, case law, academic books, and reports, complemented by a comparative legal study of South African jurisprudence.
What topics are covered in the main body of the work?
The main body covers the theoretical basis of the study, the legal frameworks for intergovernmental relations, the institutional structures at both national and county levels, specific dispute resolution mechanisms (ADR), and analysis of court decisions.
How can this work be characterized by its keywords?
The work is characterized by terms such as Devolution, Intergovernmental Relations, ADR Mechanisms, Constitutionalism, and Cooperative Government.
Why is South African jurisprudence used as a comparison in this study?
South African jurisprudence is used because South Africa embraced devolution long before Kenya, providing valuable lessons and a precedent for interpreting constitutional principles of cooperative governance.
What is the author's stance on the role of the judiciary in intergovernmental disputes?
The author argues that courts should act as a last resort and encourage parties to exhaust all available ADR mechanisms before engaging in formal civil litigation.
- Quote paper
- Leonard Mwakuni (Author), 2017, The management of intergovernmental disputes in the Kenyan devolved system of government since 2013, Munich, GRIN Verlag, https://www.grin.com/document/544375
