The Commission on Administrative Justice (CAJ), also known as the Office of the Ombudsman, is looking into the recent boundary controversies between different county governments.
In a press statement to newsrooms, CAJ says the controversies have taken two perspectives: first disputes regarding the actual boundaries of the counties, and second, disputes on the allegation that the current boundaries are unfair since they are based on historical injustices.
The statement adds that the controversies have created tension and taken violent dimensions in some cases leading to loss of lives and property. These eruptions have also led to displacement of people in the specific areas where they have happened.
CAJ says the controversies have the potential of not only undermining the objects of devolution, but also national security. The foregoing calls for urgent actions by the relevant state organs to address the issues underlying the controversies and stem the occurrence of such incidences in future between other county governments.
The commission is calling for observation of the framework for county governments which is provided for by the Constitution and a number of laws. The Constitutional framework for counties is anchored on Article 6(1) which provides that ‘the territory of Kenya is divided into Counties specified in the First Schedule.’
The First Schedule outlines the 47 counties which form the present county governments. The establishment of the 47 counties was guided by the Districts and Provinces Act, 1992, Chapter 105A of the Laws of Kenya, which clearly and comprehensively delineated the boundaries of the then existing 46 Districts and Nairobi City. These eventually became the present counties.
On the basis of the above, the Commission says reference to the Act should be the first step towards addressing the current controversies.
CAJ adds that another issue that has precipitated the disputes between some counties is the alleged unfairness of the current boundaries. It is proposing that one of the mechanisms in this regard is the settlement of disputes by negotiation, mediation and arbitration amongst county governments.
The commission has advised the president or through the responsible Cabinet Secretary (CS) to set up a special Technical Task Force comprising representatives of the Department of Surveys, Department of Lands and other relevant technocrats to affix the beacons as per the Districts and Provinces Act to establish the boundaries of all Counties.
It adds that where there are disputes relating to boundaries, like other cases, county governments should embrace consultation, co-operation and alternative dispute resolution as redress mechanisms. This, CAJ says, could take the form of an independent mediation or arbitration panel contemplated by Section 31 of the Inter-Governmental Relations Act.
CAJ, in the statement signed by its chair Dr Otiende Amollo says that the existing county boundaries should be jealously guarded. However, in extremely special cases, Parliament [Senate and the National Assembly] should invoke the option for altering boundaries under Article 188 of the Constitution.