Constitution

Kenyan Constitution, Chapter Eleven, Part 5, Article 189 to 191

BY Juma · November 15, 2016 05:11 am

Devolved Governments

Relationship between governments

Article 189: Cooperation between national and county governments

(1) Government at either level shall–

(a) perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level;
(b) assist, support and consult and, as appropriate, implement the legislation of the other level of government; and
(c) liaise with government at the other level for the purpose of exchanging information, coordinating policies and administration and enhancing capacity.

(2) Government at each level, and different governments at the county level, shall co-operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and joint authorities.
(3) In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation.
(4) National legislation shall provide procedures for settling inter-governmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.

Article 190: support for county governments

(1) Parliament shall by legislation ensure that county governments have adequate support to enable them to perform their functions.
(2) County governments shall operate financial management systems that comply with any requirements prescribed by national legislation.
(3) Parliament shall, by legislation, provide for intervention by the national government if a county government–

(a) is unable to perform its functions; or
(b) does not operate a financial management system that complies with the requirements prescribed by national legislation.

(4) Legislation under clause (3) may, in particular, authorise the national government–

(a) to take appropriate steps to ensure that the county government’s functions are performed and that it operates a financial management system that complies with the prescribed requirements; and
(b) if necessary, to assume responsibility for the relevant functions.

(5) The legislation under clause (3) shall —

(a) require notice to be given to a county government of any measures that the national government intends to take;
(b) permit the national government to take only measures that are necessary;
(c) require the national government, when it intervenes, to take measures that will assist the county government to resume full responsibility for its functions; and
(d) provide for a process by which the Senate may bring the intervention by the national government to an end.

Article 191: Conflict of laws

(1) This Article applies to conflicts between national and county legislation in respect of matters falling within the concurrent jurisdiction of both levels of government.
(2) National legislation prevails over county legislation if–

(a) the national legislation applies uniformly throughout Kenya and any of the conditions specified in clause (3) is satisfied; or
(b) the national legislation is aimed at preventing unreasonable action by a county that–

(i) is prejudicial to the economic, health or security interests of Kenya or another county; or
(ii) impedes the implementation of national economic policy.

(3) The following are the conditions referred to in clause (2) (a)–

(a) the national legislation provides for a matter that cannot be regulated effectively by legislation enacted by the individual counties;
(b) the national legislation provides for a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing–

(i) norms and standards; or
(ii) national policies; or

(i) the maintenance of national security;
(ii) the maintenance of economic unity;
(iii) the protection of the common market in respect of the mobility of goods, services, capital and labour;
(iv) the promotion of economic activities across county boundaries;
(v) the promotion of equal opportunity or equal access to government services; or
(vi) the protection of the environment.

(4) County legislation prevails over national legislation if neither of the circumstances contemplated in clause (2) apply.
(5) In considering an apparent conflict between legislation of different levels of government, a court shall prefer a reasonable interpretation of the legislation that avoids a conflict to an alternative interpretation that results in conflict.
(6) A decision by a court that a provision of legislation of one level of government prevails over a provision of legislation of another level of government does not invalidate the other provision, but the other provision is inoperative to the extent of the inconsistency.

About Juma

Juma is an enthusiastic journalist who believes that journalism has power to change the world either negatively or positively depending on how one uses it. (020) 528 0222 or Email: info@sokodirectory.com

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