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Animating Devolution in Kenya: the Role of the Judiciary

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Animating Devolution in Kenya: the Role of the Judiciary Animating Devolution in Kenya: The Role of the Judiciary Copyright © International Development Law Organization (IDLO) and Judicial Training Institute (JTI) and Katiba Institute, 2015 Disclaimer The views expressed in this book are the views of the authors and do not necessarily reflect the views or policies of IDLO or its Member Parties, the JTI or Katiba Institute. All rights reserved. This material is copyrighted but may be reproduced by any method without fee for any educational purposes, provided that the source is acknowledged. For copying in other circumstances or for reproduction in other publications, prior written permission must be granted from the copyright owner and a fee may be charged. Requests for commercial reproduction should be directed to the International Development Law Organization. This book is funded by DANIDA. The findings and conclusions contained within are those of the authors and do not necessarily reflect the positions or policies of DANIDA. Published by International Development Law Organization (IDLO) Viale Vaticano, 106 | 00165 Rome | Italy Tel: +39 06 40403200 | Fax: +39 06 40403232 Web: www.idlo.int | Email: [email protected] | Twitter: @IDLO and Judiciary Training Institute (JTI) P.O. Box 28872-00200 | Nairobi | Kenya Web: www.judiciary.go.ke | Email: [email protected] / [email protected] and Katiba Institute P.O. Box 26586-00100 | Nairobi | Kenya Web: www.katibainstitute.org | Email: [email protected] Layout and printing by: Amos B. Omollo, [email protected] ISBN 9788896155165 ii Contents Foreword v Biographical Notes vii 1 Introduction - Wanjiru Gikonyo and Conrad M. Bosire 1 Part I: General Context Setting 2 Comparative Theory and Kenya’s Devolution - Yash Ghai 13 3 Devolution and Kenya’s Socio-Economic Development: A Political Economy Inquiry and Emerging Case Law - Duncan Okello 38 4 Devolution, Politics and the Judiciary in Kenya - Peter Wanyande 58 Part II: Kenyan Systems and Structures of Devolved Governance 5 County Governance: Political and Institutional Structures and their Effectiveness - Valerie Nangidi 84 6 The Emerging Approach of Kenyan Courts to Interpretation of National and County Powers and Functions - Conrad M. Bosire 101 7 Emerging Issues in County Public Finance Management - John Mutua 117 8 Judicial Adjudication of Intergovernmental Disputes in Kenya: Defining Judicial Boundaries and Appropriate Remedies - Mugambi Laibuta 145 9 The Bill of Rights and County Governments: Emerging Jurisprudence from the Courts - Jill Cottrell Ghai 166 Part III: Comparative Perspectives 10 The Enforcement of Socio-Economic Rights against Local Governments in South Africa - Jaap de Visser 193 11 South Africa: The Role of the Constitutional Court in Defining Subnational Governments’ Powers and Functions - Nico Steytler 208 12 Interpreting Divided Sovereign Jurisdiction: Federalism in Canada - Robin K. Basu 227 Part IV: Supporting Processes for Devolved Governance 13 Kenya’s Emerging Judicial Interpretation of Public Participation under the Devolved System of Government - Ben Nyabira 266 14 Safeguarding Devolution Through Public Interest Litigation - Waikwa Wanyoike 292 15 The Role of Civil Society in Promoting Devolved Governance in Kenya - Wanjiru Gikonyo 314 16 Conclusion - Wanjiru Gikonyo and Conrad M. Bosire 334 iii Animating Devolution in Kenya: The Role of the Judiciary Judiciary Training Institute The Judiciary Training Institute (JTI) is the organ of the Kenyan Judiciary which is responsible for meeting the training, research and capacity development needs of Judiciary staff. JTI performs this mandate in part through various training programs and seminars, public lectures, research, and other forms of discourses targeting all cadres of Judiciary staff, and, where appropriate, members of the academy, other organs of state and the public at large. As the Judiciary’s institute of higher learning, the JTI is leading the Judiciary, in line with Judiciary Transformation Framework, in facilitating the growth of jurisprudence and judicial practice as the lifeblood of the institution. The JTI is the judicial think tank: an institute of global excellence and the nerve centre of rich intellectual exchange. It interfaces between the Judiciary and contemporary developments in society, on the one hand, and learning interaction between the Judiciary and other agencies, on the other. The JTI provides the intellectual anchor in making Kenya’s courts the hearth and home of a robust and functional jurisprudence that meets the aspirations of Kenyans. International Development Law Organization The International Development Law Organization (IDLO) is the only intergovernmental organization exclusively devoted to promoting the rule of law. IDLO works to enable governments and empower people to reform laws and strengthen institutions to promote peace, justice, sustainable development and economic opportunity. Its programs, research and policy advocacy cover the spectrum of rule of law from peace and institution building to social development and economic recovery in countries emerging from conflict and striving towards democracy. IDLO has its headquarters in Rome, a Branch Office in The Hague, liaison offices for the United Nations in New York and Geneva, and country offices in Afghanistan, Honduras, Indonesia, Kenya, Kyrgyzstan, Liberia, Mali, Mongolia, Myanmar, Somalia, South Sudan and Tajikistan. Katiba Institute The Katiba Institute was established in 2011 to promote knowledge and studies of constitutionalism and to facilitate the implementation of Kenya’s new constitution. Its activities include publications on the Constitution, workshops on constitutional issues, public interest litigation, development of the legal and judicial system, establishment of county governments, land reform, review of legislative bills to implement the Constitution, and promoting the participation of Kenyans in public affairs. iv Foreword Five years ago, the promulgation of the Constitution of Kenya 2010 fundamentally restructured the Kenyan state and ushered in a new devolved system of government. Devolution was born of the real challenges that Kenyans had grappled with since independence including the need for accountable exercise of power, effective self-governance, equitable social and economic development, entrenchment of public participation, and the implementation of the subsidiarity principle in governance. Simultaneously, devolution was entrenched in the Constitution as a means of recognising and accommodating Kenya’s rich diversity and ensuring robust protection for minorities and marginalised communities including women. As the custodian of Kenya’s general constitutional transformation, the Judiciary is at the core of the transformation to devolved governance. Specifically, the courts have a mandate to ensure that devolution is implemented in a way that translates into the stated constitutional objectives – breathing life into our ambitious and progressive Constitution. This publication is unique as it compiles a myriad of perspectives from across different disciplines, institutions and actors to illustrate what devolved governance in Kenya has meant, touching on topics that range from fundamental rights, public finance management, contextual and historical analysis of devolved governance, adjudication of intergovernmental disputes, the role politics plays in devolution and innovative approaches to defending the letter and spirit of the constitutional provisions with regard to devolution such as public interest litigation. Each chapter aims to enrich the emerging jurisprudence on devolution from the Kenyan courts, while benchmarking comparative jurisdictions grappling with the challenges of devolved governance, including South Africa and Canada. Ultimately, this publication identifies and locates Kenya’s emerging jurisprudence within the broader discourse on good governance and the rule of law. The publication is part of efforts aimed at the growth of sound, robust, indigenous and patriotic jurisprudence which advances law in a manner that responds to the people’s v Animating Devolution in Kenya: Th e Role of the Judiciary needs and national interests and which enables the Kenyan Judiciary to command respect and distinction among its peers globally, while also earning respect and legitimacy in the eyes of the public. This is in line with Key Result Area 7 of the Judiciary Transformation Framework (JTF). In addition to thanking the authors and editors for the invaluable insights captured within, I would like to thank the Judiciary Training Institute, the International Development Law Organization (IDLO), and Katiba Institute for their tremendous effort in compiling this important publication. The judiciary seminars on devolution that led to the development publication were initially supported by the Canadian International Development Agency (CIDA) and I therefore thank the Canadian government for its initial support. Lastly, a warm thanks to DANIDA for their continued support to the Judiciary including the funding of this important publication. It is my sincere hope that the Judiciary, and all stakeholders – other state agencies, civil society and academia included– will utilize this publication to enrich their understanding of devolution in Kenya and to continue championing the promise of devolution as envisioned in the 2010 Constitution. Hon. Chief Justice Dr. Willy Mutunga vi Biographical Notes WANJIRU GIKONYO, EDITOR Wanjiru Gikonyo has dedicated her past 10 years towards the realisation
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