OVERVIEW OF INTERGOVERNMENTAL

RELATIONS ACT 2012

TO BUNGOMA CBEF

Kisumu Hotel

By Elias Wakhisi 2014/09/11

Overview of the Intergovernmental Relations Act 2012

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INTROWHAT ARE INTERGOVERMENTAL

RELATIONS (IGR)?• A constitution establishes the structure of government; IGR bring the structure

to life

• The constitution is the structure; IGR are the process – the way in which the necessary business of the nation/state gets done

• Two types:

1. Relations between the national government and the Counties(vertical)

2. Relations among County Governments themselves (horizontal)

• No real watertight compartments – overlap, entanglement, sharing

• Powers and responsibilities in such modern arrangements cannot be cleanly divided between two orders of government; hence they have to work together – IGR

• In some federations, powers and responsibilities are concurrent or shared in various ways – hence IGR

• Involves both politicians and officials

INTROWHY ARE THEY IMPORTANT?

• Governments must work with and against one another as circumstances change

• In all cases, intergovernmental relations are an inevitable, vital and omnipresent feature of functioning devolved structures

• They constitute one of the most important instruments of flexibility in a devolved political system. Some others are:

– The utilization of concurrent jurisdiction

– The intergovernmental delegation of legislative powers and administrative responsibilities

– „Opting in‟ and „opting out‟ arrangements

– Intergovernmental agreements and accords

INTRO THE TASKS OF INTERGOVERNMENTAL

RELATIONS: I

• Primary functions:

– Putting the provisions of the Constitution into

action

– Resolving conflicts between the partners

– Adapting governing and policy arrangements to

changing circumstances

INTRO TASKS OF INTERGOVERNMENTAL

RELATIONS: II

• Fiscal/financial issues: sorting out revenue and expenditure

arrangements

• Negotiating fiscal transfers, typically from the National to

County governments

• Regulating intergovernmental competition, policy overlap,

policy coordination

INTRO SOME EXAMPLES

• Germany and South Africa: IGR as a constitutional principle:

– Germany – Bundestreue – cooperative governance and loyalty to the federation

– South Africa – Chapter 3 Cooperative Government –governments to “cooperate with one another in mutual trust and good faith.”

• Germany: the upper house as an IGR institution

• India, Malaysia: financial commissions and councils

• Canada: informal processes of executive federalism

Kenyan Case:

The Intergovernmental

Relations Act , 2012

Introduction- Intergovernmental

Relations Act, 2012

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Establishes a framework for consultation & co-operation between the national & county governments and amongst county governments;

Establishes mechanisms for the resolution of intergovernmental disputes pursuant to Articles 6 &189 of the Constitution

Objectives of the Act(S3):

1. provide a framework for consultation & cooperation between the national & county governments;

2. provide a framework for consultation & cooperation amongst county governments;

3. establish institutional structures & mechanisms for intergovernmental relations;

4. Provide a framework for the inclusive consideration of any matter that affects relations between the two levels of government & amongst county governments;

5. give effect to Articles 187 and 200 of the Constitution,

Principles of Intergovernmental

Relations(Sec.4)

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1. Recognition of the sovereignty of the people as

provided for under Article 1 of the Constitution

2. Inclusive & participatory governance;;

3. Respect for the functional & institutional integrity of the

two levels of government;

4. Promotion of national values and principles of

governance as provided by Art.10;

5. Respect for the constitutional status of the levels of

government;

6. promotion of equality and equity in service delivery;

Intergovernmental Relations

Structures- The Summit-sec 7

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There is established a National & County Government

Coordinating Summit which shall be the apex body for

intergovernmental relations.

Summit composed of:

1. the President or in the absence of the President, the

Deputy President, who shall be the chairperson; and

2. the governors of the 47 counties.

3. The chairperson of the Council of Governors elected

shall be the vice-chairperson of the Summit.

Functions of the Summit(sec 8)

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The Summit shall provide a forum for.

1. consultation & co-operation between the national & county

governments;

2. promotion of national values and principles of governance;

3. promotion of national cohesion and unity;

4. consideration and promotion of matters of national interest;

5. consideration of reports from other intergovernmental forums and

other bodies on matters affecting national interest;

6. evaluating the performance of national or county governments and

recommending appropriate action;

7. receiving progress reports and providing advice

8. monitoring the implementation of national & county development

plans and recommending appropriate action;

Meetings of the Summit

(Sec10)

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• The Summit shall submit an annual report to the National

Assembly, the Senate and the county assemblies, within

3 months after the end of every financial year.

• The National Assembly, the Senate or the county

assemblies shall, upon receiving the annual report make

such recommendations to the Summit;

• The National Assembly, the Senate or the county

assemblies may, at any time, request information from

the Summit on any matter

Intergovernmental Relations Technical Committee

(Sec 11).

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The Technical Committee shall comprise—

1. a chairperson competitively recruited and appointed by

the Summit;

2. not more than eight members who shall be competitively

recruited and appointed by the Summit; and

3. the Principal Secretary of the State department for the

time being responsible for matters relating to devolution

Functions of the Intergovernmental Relations

Technical Committee (Sec 12).

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1.The Committee shall be responsible for the day to day

administration of the Summit and of the Council and in

particular—

I. facilitate the activities of the Summit and of the Council;

II. implement the decisions of the Summit & of the Council;

2. take over the residual functions of the transition entity

established under the law relating to transition to

devolved government after dissolution of such entity;

3. convene a meeting of the 47 County Secretaries within

30 days preceding every Summit meeting;

4. perform any other function as may be conferred on it by

the Summit or/and the Council

Council of Governors (Sec 19).

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• There is established a Council of County Governors which shall

consist of the governors of the 47 counties.

• The Council shall elect a chairperson and a vice chairperson from

amongst its members.

• The chairperson and vice chairperson of the Council shall serve for a

term of one year and shall be eligible for re-election for one further

term of one year.

Functions of the Council of Governors (Sec 20).

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The Council shall provide a forum for:

1. Consultation amongst county governments;

2. sharing of information on the performance of the counties in the

execution of their functions;

3. considering matters of common interest to county governments;

4. dispute resolution between counties within the framework;

5. facilitating capacity building for governors;

6. receiving reports & monitoring the implementation of intercounty

agreements on inter-county projects;

7. consideration of matters referred to the Council by a member of the

public;

8. consideration of reports from other intergovernmental forums on

matters affecting national and county interests;

Principles of transfer or delegation of powers,

functions & competencies.(Sec 25).

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The A government transferring or delegating a power, function or

competency under this Part shall—:

1. ensure the assignment is to the level of government best placed to exercise

or perform the power, function or competency in accordance with Article 187

of the Constitution;

2. ensure that adequate resources are provided to carry out the power,

function, or competency;

3. ensure that the transfer is in accordance with the procedures set-out under

this Act or prescribed by regulations made under this Act;

4. ensure a transfer or delegation under this section does not transfer

constitutional responsibility assigned to that level of government.

Agreements on transfer or delegation of powers,

functions or competencies..(Sec 26 ).

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A transfer or delegation of powers, functions or competencies shall be by a

written agreement.

The agreement for the transfer or delegation shall include—

1. the function, power or competency transferred or delegated;

2. specific legal provisions supporting the transfer or delegation;

3. the reasons for the transfer or delegation;

4. the performance standards and frameworks in respect of the transfer or

delegation;

5. the resourcing framework for delivery of the powers, function or competency

transferred or delegated;

6. the capacity of the receiving entity to exercise or perform the powers,

function, or competency transferred or delegated;

7. the capacity building framework for enhancing any deficits identified in the

entity to which the transfer or delegation has been effected

Agreements on transfer or delegation of powers,

functions or competencies..(Sec 26 )- contd

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7. The terms and conditions for the exercise or performance of the power,

function or competency including the time frame;

The agreement shall be—

a) signed by an authorized person or officer; and

b) published in the Kenya Gazette and the county gazette in respect of the

county to which it relates, at least fourteen days before the effective date of

the transfer or delegation.

The National Assembly shall be notified of the decision to transfer a national

government power, function or competency;

A county assembly shall be notified of the decision to transfer a county

government power, function or competency.

Criteria for transferring powers, functions or

competencies(Sec 28).

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The criteria for the transfer or delegation of powers, functions or

competencies shall include—;

1. Capacity of the entity to which the power function or competency is

being transferred or delegated;

2. The extent to which the transfer or delegation would allow for

accountability;

3. The extent to which the power, function or competency would best

be performed by a single authority across a county, city, municipality

or the Republic;

4. The existence of the level of technical and managerial expertise

required to perform a transferred or delegated function or

competency;

5. whether the provision of the service requires substantial intercounty

or large-scale infrastructure.

Dispute Resolution

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The national and county governments shall take all reasonable measures to—

(a) resolve disputes amicably;

(b) apply and exhaust the mechanisms for alternative dispute resolution provided under

this Act or any other legislation before resorting to judicial proceedings as

contemplated by Article 189(3) and (4) of the Constitution.

Any agreement between the national government and a county government or

amongst county governments shall—include a dispute resolution mechanism that is

appropriate to the nature of the agreement and provide for an alternative dispute

resolution mechanism with judicial proceedings as the last resort;

Formal declaration of a dispute-Before formally declaring the existence of a dispute,

parties to a dispute shall, in good faith, make every reasonable effort and take all

necessary steps to amicably resolve the matter;

Judicial proceedings: Where all efforts of resolving a dispute under this Act fail, a

party to the dispute may submit the matter for arbitration or institute judicial

proceedings.

THANK YOU

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