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OVERVIEW OF INTERGOVERNMENTAL
RELATIONS ACT 2012
TO BUNGOMA CBEF
Kisumu Hotel
By Elias Wakhisi 2014/09/11
Overview of the Intergovernmental Relations Act 2012
1
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
Introduction- Intergovernmental
Relations Act, 2012
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Intergovernmental Relations Act
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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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Intergovernmental Relations Act
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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.