The KEPSA Devolution and Planning Sector Board held its second quarter meeting on 3rd May 2018. The main focus of the meeting was to track progress of issues advanced by the sector board, align devolved governance to governments Big 4 agenda as well as presentation on proposed regulations on intergovernmental alternative dispute resolution.
Members present discussed the devolution portal that was launched in July 2017, citing that it was important as it aimed at disseminating information of the counties. They also discussed devolution implementation status which have now been synchronised allowing members access to information and making informed decisions on counties.
It was also noted the county own source revenue enhancement policy and county tax regulation process bill has been referred to a technical committee between the Council of Governors and the National Treasury for the development of relevant policy and regulations that would enable counties expand their sources of revenue as well as solve the double taxation challenge. Members also noted the regulatory framework for the resolution of multiplicity of levies and charges has not yet been resolved and has been pending for a long time.
Members advocated for a bottom up development approach where the county wards become the unit of development. It was noted that in the implementation of the Big 4 agenda, the competitiveness of counties is key in spurring industry and trade needed. Counties competitive advantage should guide the development of county specific plans to the uptake of agro processing and manufacturing. It was agreed that KEPSA should therefore work closely with the counties in development of investment plans.
Alternative Dispute Resolution (ADR), is a quasi-judicial process where an impartial ADR practitioner encourages and facilitates resolution of a dispute between two or more parties. The Constitution of Kenya 2010 in Article 159 (2)(c) entrenches the principle of reconciliation, mediation, arbitration and traditional dispute resolution mechanisms as a means of dispute resolution. To further deepen, enhance and widen the scope of its application, Article 189(3) declares the “in any dispute between governments, the governments shall make every reasonable effort to settle the dispute by means of procedures provided under national legislation”. The State law office is currently developing a policy for identifying and resolving intergovernmental disputes.
A number of Senate and National Assembly Bills have been settled through mediation committees and the mediated versions were passed by both houses except those that lapsed due to closure of house business. These include: The Statute Law (Miscellaneous Amendments) Bill, Senate Bills No. 6 of 2014. The Public Fundraising Bill, Senate Bills No. 28 of 2014, The Health Bill (National Assembly Bill No. 14 of 2015), The Assisted Reproductive Technology Bill (National Assembly Bill No. 36, 2014 The County Governments (Amendment) (No. 2) The County Governments Amendment Bill, 2014, Political Parties Amendment Bill, 2014 bills were mediated and the mediated versions passed. This demonstrates the potential of ADR in resolving complex intergovernmental difference.
During the first phase of devolution, county governments and national government mostly used litigation to settle their disputes which was costly and negatively imparted on funds allocated for development and service delivery. The Ministry of Devolution and ASAL is in the final stages of finalising on the intergovernmental alternative dispute regulations that will be key in guiding national and county government settle their disputes through ADR mechanisms’ and only sue litigation as a last resort.
Members also indicated that Intergovernmental relations are key in the implementation of the Big 4 since three of the focus sectors namely agriculture (food security), health, trade and industry are fully devolved. It was important that intergovernmental relations platforms including the intergovernmental sectional forums are strengthened. So far, the following intergovernmental sectorial forums, Agriculture, Finance and Health have been active with the remainder of the 17 forums established in 2015 being dormant. The forums need to be entrenched in law so as to enforce their resolutions in order to enhance resolution of intergovernmental issues and disputes.