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

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

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.