Speech by The Cabinet Secretary, Ministry Of Devolution And Asal Areas, Hon. Eugene Wamalwa,EGH, During The Official Opening Of The Alternative Dispute Resolution Regulations Validation Workshop At Acacia Hotel, Kisumu County, On February 13th 2018.

Your Excellency, the Governors

Deputy Governors

Chief Administrative Secretary in the Ministry

The Principal Secretary

The Secretary, Devolution Affairs and Inter-governmental Relations

All Officials from the counties

All Protocols observed

Ladies and Gentlemen;

It gives me great pleasure today to preside over this important exercise geared towards the development of regulations to guide the process of alternative dispute resolution.

This is my first major function since I took over as the Cabinet Secretary, Ministry of Devolution and Asal Areas. It is indeed an honour for me to serve in this Ministry, which I believe remains the centre piece of the Jubilee Government’s administration.

As I take over the running of the Ministry, it’s my intention to have cordial working relationship with County governments and all other agencies within the national government. It is critical that we avoid acrimony as we conduct our affairs at the various levels of government as all of us are all in office to serve Kenyans, who are the ones who put us in office.

As a Ministry, we are lucky to have Ambassador Hussein Dado as our Chief Administrative Secretary. Being the immediate former governor of Tana River County, he has a clear understanding of the strengths and weaknesses of county governments.  I intend to work with him very closely to address underlying issues that hamper devolution to enhance viability of County Governments.

Ladies and Gentlemen;

As you are all aware the Constitution of Kenya 2010, ushered in the devolved system of government and with it, new opportunities and challenges. This need to be systematically addressed in order to realize the full benefits of devolution.

Kenyans had and still have great expectations of devolution in changing their lives, some of which have been met while others are yet to be realized. I therefore want to work together with all of you to realize these unmet expectations of our people.

In order to achieve this, it is imperative that the two levels of government, though distinct, continue to conduct their mutual relations on the basis of consultation and cooperation, as envisaged by the Constitution, which provides a framework for cooperative government and intergovernmental relations.

Article 159 (2) of the Constitution, entrenches the principle of reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. Similarly, Article 189 (4) provides for the enactment of procedures for settling intergovernmental disputes through negotiations, mediation and arbitration.

This requirement is further emphasized in the Intergovernmental Relations Act (2012), which prescribes the manner in which intergovernmental disputes are to be resolved.

From the foregoing, it is clear that the Constitution and the Statute referred to above contemplated that disputes between the two levels of Government and between the various government agencies would be settled amicably and only be subjected to judicial interventions after other mechanisms fail to resolve the dispute.

Ladies and Gentlemen,

Despite the aforementioned provisions and good intentions, the nature of devolved systems of government gives rise to inherent tensions and conflict that pose a threat to the gains so far achieved.

In the past, the country has witnessed conflicts between national government agencies and County governments as well as between counties and between the executive and county assemblies among others.

Most of these disputes have found their way to the courts as a first recourse without exploring other alternatives to resolve the conflicts as provided for in Article 189(4) of the Constitution. This has largely been due to the absence of regulations guiding alternative dispute resolution mechanisms.

In the process, a lot of resources in terms of money, time and energy have been expended through court cases while the resultant acrimony between the warring parties has made it difficult to effectively execute duties and responsibilities of the various actors in the dispute.

This state of affairs if not checked threatens the gains from devolution as public funds get diverted to pay the high cost of litigation thereby disrupting the provision of normal public services to wananchi.

Ladies and Gentlemen:

A study conducted by the Intergovernmental Technical Committee on the costs of litigation among other issues revealed that the costs of litigation are a major constraint to development particularly in county governments. Development projects have been unduly delayed and sometimes abandoned due to litigation while advocate fees charged at the High court have ranged from between Kshs. 20 – Kshs. 30 million per case filed. This is further compounded by the fact that counties mainly rely on external counsel as they are yet to establish fully fledged legal departments.

To address this, the State Department for Devolution, in fulfillment of its mandate and in line with Section 38 of the Intergovernmental Relations Act (2012), that mandates the Cabinet Secretary in consultation with the Summit to enact regulations and procedures for dispute resolution, embarked on the preparation of the draft alternative dispute regulations that we are validating today.

A multi-agency team comprising of the Attorney General’s office, Council of Governors, the Intergovernmental Relations Technical Committee among others was set up.

It has been a highly consultative exercise that was kick-started by a national stakeholder’s forum in Naivasha. Indeed, the views raised during that meeting have been invaluable in the development of these draft regulations.

Ladies and Gentlemen,

As the Cabinet Secretary in charge of devolution, I commit myself to work with all stakeholders including the Judiciary, Parliament, the executive, County Governments and Assemblies, non-governmental organizations and the general public to create awareness  and build capacity on the various avenues and benefits of alternative dispute resolution.

I believe that with the requisite knowledge, aggrieved parties will not rush to the courts without exploring other alternatives available to resolve their concerns.

Ladies and Gentlemen:

As we congregate here today, it is my prayer that we will all commit ourselves, as patriotic Kenyans, to the task ahead of us and that the end result will be a framework through which contentious issues can be solved without resorting to litigation.

As I conclude, I want to wish you fruitful deliberations and at the same time urge all of you to support my Ministry in carrying out this onerous but extremely important task. Together we can!

Thank you.