Alternative Dispute Resolution Mechanisms as a Tool for Dispute Settlement in the Devolved Governance System in Kenya

Abstract

The Constitution of Kenya, 2010 establishes a devolved governance system comprising two levels of government namely; the national and county governments which are distinct and interdependent and required to conduct their mutual relations on the basis of consultation and cooperation. Under the system, citizens participate in their governance by exercising their sovereignty, either directly or indirectly through elected and appointed representatives. To operationalize the new system of governance, the Constitution has set up institutions and has allocated responsibilities and powers respectively. However, due to the distinct and interdependent nature of the two levels of government and the manner of their institutional and functional assignment, the Constitution has provided a system of intergovernmental relations including alternative dispute resolution methods for resolving disputes that avoid litigation in the first instance. The implementation of the devolved governance system has registered a number of achievements since March, 2013 among them being; enactment of relevant laws, the operationalization of county government structures, transfer of functions and responsibilities as well as the allocation of resources. Amidst these successes, a number of challenges have emerged which if not adequately addressed may undermine the implementation of devolution. However, the framework for the settlement of intergovernmental disputes envisaged in the constitutional and statutory provisions has not been put in place. This study makes a case for the adoption and promotion of alternative dispute resolution methods to address intergovernmental disputes and prevent judicial intervention by riding on its advantages while acknowledging its inherent limitations. Hence, the formulation of a legal and policy framework to operationalize the constitutional provisions for promotion of ADR in intergovernmental dispute settlement, ensuring consistent respect for the principle of the rule of law as well as consultation and cooperation will foster the achievement of the objects of the devolved governance system in Kenya.