My paper titled “The Place of ADR in Intergovernmental Disputes” published online last week was one of the subject of discussion at the momentous meeting between the Senate and members of the Chartered Institute of Arbitrators (Kenya Branch) on 14th June 2018. At the meeting, members of the Institute urged the legislators to consider alternative dispute resolution as a critical feature of legislation in which dispute resolution is contemplated. The Institute highlighted the glaring gap in legislative instruments with regard to the pressing need to incorporate ADR mechanisms and recognize the role of such institutions as the Chartered Institute of Arbitrators, the Nairobi Centre for International Arbitration, the Mediation Accreditation Committee, and the Centre for Dispute Resolution. Of even greater concern was the lack of a defined legal framework for the resolution of intergovernmental and intra-governmental disputes by alternative means. The pressing need for an ADR framework for the resolution of intergovernmental and intra-governmental disputes was noted.
Moving Forward
The Senate’s attention was drawn to the need for a defined intergovernmental and intra-governmental dispute resolution framework. Such legislative framework would “… provide [more effective] procedures for settling intergovernmental and intra-governmental disputes by alternative dispute resolution mechanisms, including negotiation, conciliation, reconciliation, mediation and arbitration” to meet the mandatory requirements of article 189(4) read together with article 159(2) of the Constitution. The proposed legal framework would lend efficacy to the sustained efforts by the two levels of government and by various county governments inter se to resolve their disputes amicably as mandated by article 189(3). To this end, it would be necessary to amend article 189 of the Constitution to accommodate intra-governmental disputes so as to widen the range of disputes which should be resolved by means of ADR as an alternative to litigation.
The participants’ attention was drawn to the range of disputes that arise between the two levels of government and among county governments inter se, and which require expeditious and cost-effective means of resolution. Examples of such disputes include those arising from (a) fiscal relations and fiscal resource allocation; (b) intergovernmental administrative relations; (c) intergovernmental service delivery in the context of certain shared functions; (d) jurisdictional and legislative relations; (e) shared or guaranteed investment programmes; (f) encroachment by the national government and public entities on functions assigned to county governments; (g) joint undertakings between national and county governments; (h) joint undertakings between county governments in the context of the emerging regional economic blocks and other contractual undertakings; and (i) access to natural resources and boundary disputes.
Why ADR? ADR is a set of market mechanisms that are suitably designed to maximize (a) proportionality of costs; (b) party control; (c) expedition; (d) quality procedures and outcomes; and (e) consumer satisfaction. Even though ADR is not the panacea for all conflicts and disputes, it nonetheless presents our state organs with practical solutions to disputes that plague our service delivery models. ADR Strategies include (i) negotiation; (ii) conciliation and reconciliation; (iii) adjudication; (iv) mediation; and, last but not least, (v) arbitration. These mechanisms are voluntary (i.e., contractual). With the exception of arbitration that culminates in an award, the others result in mutually generated outcomes.
The Ideal Legislative Model
To achieve this goal, Parliament should consider, in appropriate cases, building into every statute an ADR mechanism for the resolution of intergovernmental and intra-governmental disputes. The expanded legal framework would necessarily require the amendment of article 189(4) of the Constitution to include intra-governmental disputes. This would ensure that the legislation referred to in sub-article (3) and the Regulations contemplated by the Intergovernmental Relations Act, 2012 extend to a wider range of disputes for the good of all state organs.