Openness must prevail in public procurement

By Michael Okelloh

The recently launched website to monitor implementation of projects under Kenya’s Economic Stimulus Package (ESP) and Slovakia’s new law have similar objectives — enhancing transparency in public procurement.

Passed last December as part of the anti-corruption electoral campaign pledge of the six-month-old government of President Iveta Radicova, the new Slovak law requires all government institutions, in compliance with the Freedom of Information Act, to publish on the Internet all contracts involving public funds.

The contracts will not be valid until they appear online. They will be published, for example, in the central registry of contracts and the institution’s websites.

Lessons from Slovakia

The first lesson is that increased public access to information is a powerful tool against corruption because graft often thrives in environments that promote secret dealings.

Kenyans, especially the civil society, should lobby the Executive, Parliament and the Commission on the Implementation of the Constitution to prioritise enacting the Freedom of Information Act.

This Act will not only expound the skeleton constitutional right of access to information, but will discharge one of the pending civil service reforms contemplated under Agenda Item IV of the Kenya National Dialogue and Reconciliation framework — repeal of the Official Secrets Act and enactment of the Freedom of Information Act.

The second lesson is the need for pro-reform agents to not only initiate reforms without undue delay, but sustain the momentum for desired reforms despite resistance from anti-reforms forces.

Governance pundits say a new regime has about 18 months, after assuming office, to kick-start serious governance reforms.

This window of opportunity is believed to be the average period that dislodged anti-reform elements to regroup for a counter-attack against proposed or ongoing reforms.

Less than six months in office, it is encouraging that the new Slovak government managed to push through such an impressive public procurement reform.

Further, shortly after US President Barack Obama assumed office, he directed heads of departments and agencies in the Executive to administer the US Freedom of Information Act guided by the following assumption: "In the face of doubt, openness prevails."

The Grand Coalition government has been accused of squandering many windows of opportunity for serious governance reforms, often due to limited foresight, self-interest and intra-coalition squabbles.

There are worrying signs that the political class is still inclined, mostly through premature focus on the 2012 succession politics, to waste the latest new Constitution-provided window of opportunity for carrying out fundamental political, economic and social reforms.

The third lesson from Slovakia is the need to recognise and actively involve the large — and growing — Internet-based Kenyan community in governance matters, especially in fighting corruption in public procurement.

With the ongoing Internet explosion, there is little justification why some public authorities do not have websites, or have websites that are not updated.

Such websites would be one of the avenues for not only advertising proposed procurement of goods, works and services, but also informing the public of procurement contracts awarded by public entities.

Information technology

The Public Procurement Oversight Authority (PPOA) only publicises, on its website, contracts worth over Sh5 million awarded by public procurement entities.

However, malpractices certainly occur with regard to the unpublicised low-value or medium-value procurement contracts, which form the bulk of procurement contracts awarded by many public entities.

ESP’s new website and PPOA’s practice of publicising big procurement contract awards have proved that Kenyans do not need to wait for amendments to the procurement law or enactment of a Freedom of Information Act before more public entities begin to handle public procurements in a transparent manner, say, by posting all their procurement contracts awards on the Internet.

PPOA should therefore issue an appropriate administrative directive to all public procurement entities, and demand their compliance. Some statistics will help in highlighting the gravity of corruption in public procurement.

Treasury PS Joseph Kinyua reportedly said recently that about Sh270 billion is lost to corruption annually, and public procurement is among the darkest holes into which huge public funds often disappear.

Noting that transparency is among our constitutional national values and principles of governance, we need to deter graft in public procurement by requiring public entities publicise all their procurement contract awards on their institutional websites or PPOA’s website.

— The writer is a Practising Advocate of the High Court and Law Lecturer at Jomo Kenyatta University of Agriculture and Technology