By Billow Kerrow
On the Kenya Airports Authority (KAA) Greenfield Project tender row, Transport Minister Amos Kimunya may be justified in demanding cancellation of the Sh55 billion project.
That a contract this big was signed right under his nose without a whiff of the money was probably mindboggling to the man and his ilk. And the law gives him the power. Under the KAA Act, the minister has powers ‘to approve any individual capital work whose estimated cost exceeds Sh10 million and may ‘give general directions to the Board relating to the operation of the undertakings of the Authority’.
The suspended KAA managing director may argue till cows come home that he had approval of the Attorney General, Public Procurement Oversight Authority (PPOA), Ethics and Anti-Corruption Commission or Head of Public Service.
He may also argue that the process was transparent and done in accordance with the procurement law, and that the Chinese firm is deemed competent through due diligence. It won’t help. If the minister, directly or through his board, was not in the loop, too bad. The country has to wait unfortunately.
In recent years, CEOs of State corporations and Permanent Secretaries have had to bend rules to entertain ministers and their cohorts who demand not just to be involved in procurement processes but actually determine who must win a contract.
The KAA saga is not an exception, but is very intriguing. The MD obtained approvals from all relevant public institutions but not his Board or minister according to the Board.
The parliamentary committees investigating the matter have to find out whether the MD had his own deals and decided to cut out the minister this time round. Procurement in public institutions has remained a major area of concern in the loss of public funds.
The current procurement law has been blamed by the Executive as being bureaucratic, and a hindrance to implementation of Government projects and programmes, and the Prime Minister and several ministers have called for its review. They cite stalled projects and poor absorption of budget allocations and blame it on the lengthy processes involved in public tenders.
The PPOA and the public believe there is nothing wrong with the legislation, and the stringent rules and procedures are necessary to safeguard public resources in a country where corruption is endemic. The law makes procurement very transparent and allows for competitive process that limits irregularities.
It allows even the bidders to challenge the awards if they are satisfied the process flouted the law. The problem with absorption of funds has to do with poor and slow planning of programmes, non-compliance with procurement process, failure to meet stringent donor conditions and delays in exchequer releases.
Ministries usually seek funding before project planning process has been completed, and hence unutilised funds have to be returned to the Treasury. The latter has stated publicly that nearly a third of the public expenditure is pilfered through the foul procurements processes.
In some instances, it is vested interests that delay the process. Examples are the third generation national identity cards and the De La Rue money printing contracts and the recent Biometric Voter Registration kits tender row at the Independent Electoral and Boundaries Commission.
In recent times, ministers have used Executive fiat to cancel contracts or procurement processes, usually citing a Cabinet memo, State Corporations Act or some directive from the Head of Public Service. It is often self-interest that leads to such decisions.
We cannot afford to water down the public procurement rules when commitment to transparency and accountability is low among our leaders. This lack of commitment was demonstrated this week when Cabinet and MPs mutilated the Leadership & Integrity Bill to eliminate vetting of political leadership, wealth declaration and publishing of their criminal records.
The writer is a former MP for Mandera Central and political economist
