In recent years, the issue of public procurement is one that has captured national attention and one that has consequently necessitated the attention of the highest office in the land as envisaged by the various public pronouncements made with regard to public procurement in Kenya. These public pronouncements were made ostensibly to assure citizens of government’s intention to deal with the menace of corruption through malpractices perpetuated in public contracting processes and address the loss of millions of taxpayers’ money that resulted from these malpractices.
In 2013, President Uhuru Kenyatta launched the Access to Government Procurement Opportunities (AGPO). This initiative advocated for the amendment of procurement rules to allow 30 percent of contracts to be given to youth, women, and persons with disabilities without competition from established firms. The program sought to address the issue of competition and monopoly perpetuated by well-established and large entities that were influential and against whom disadvantaged groups could not ordinarily compete with for tenders. Through this, women-owned enterprises, youth, and persons with disabilities (PWDs) would be able to benefit from government opportunities.
This directive was to be implemented by both national and county governments and it was expected that women, youth, and persons with disabilities, will have provided goods and services to both national and county governments amounting to Kshs. 30 billion shillings. The program was intended to facilitate the realization of fair, equitable, transparent, and cost-effective public procurement as required in the Constitution.
In 2018, the President made even further-reaching directives that sought to curb the rampant corruption that was being perpetrated through illegal public contracting practices by establishing transparency measures that were to be streamlined into public contracting practices. This was specifically, through the provision of all relevant information that relates to the issuance of public contracts in Kenya.
The Executive order no 2 of 2018 was most indicative of this. The order directed all public procurement entities to maintain, continuously update and publicize through websites, information on public tenders awarded. On a positive note, this directive mirrored provisions of proactive disclosure contained in Section 5 of the Access to Information Act 2016, which requires public entities to ensure publication of information upon the signature of contracts. The Access to Information Act requires publication of information relating to the public works, goods acquired or contracted services; the contract sum, name of the service provider, or contractor who won the contract.
The Executive order accordingly went even further in its requirement for information to include information for instance on the reasons for the award and the capacity of the awardee to undertake the contract, and more importantly, required the provisions of beneficial owner information, that is for every contract awarded, the list of directors, shareholders and beneficial owners of companies that had been awarded contracts.
The Order also mandated the National Treasury to ensure seamless integration of all procurement entities to the e-procurement module under the Integrated Financial Management and Information System (IFMIS) and to ensure that all procurement entities are making their procurement through the e-procurement module.
Though these are regarded as positive steps, open contracting advocates should draw attention to the fact that the Executive order also makes provision for public contracting information which would be exempt from publication. The exemptions would include procurement information related to essential utilities such as electricity, water, and fixed-line telephones; procurement arising from declaration of national emergencies and national disasters, procurement of a classified nature, and low threshold procurement as prescribed by law.
While it can be appreciated that such envisaged scenarios do arise that may require immediate and speedy action, there are levels of information that should still be provided in order to ensure transparency and accountability and standards should be developed and implemented as safeguards where such situations arise. It should be noted that the very scenarios presented by the exemptions are ones which would be most susceptible to contracting malpractices
It can be summarized therefore that the issue of open contracting therefore is not one of lack of policy but one of inadequate practice. The public procurement regime in Kenya is governed by the Public Procurement and Assets Disposal Act and the attendant Regulations. The above orders and presidential directives seek to buttress the legal framework and go further in recognizing the particular challenges that are experienced when undertaking public contracting in Kenya, and the illegal practices that have caused serious hemorrhage of public funds in numerous scandals that have been witnessed by Kenya citizens over the years.
That said, for open contracting to become a reality in Kenya, there is a need to go beyond public pronouncements to real and tangible action through actual implementation and vigilant oversight. The directives give some hope that there is the political will to address the issue of corruption through public contracting and if implemented would go a long way to seal the loopholes that are so often exploited through illegal practices, that have resulted in the loss of billions of shillings that are intended for development and public service delivery to citizens. Their effective implementation would bring the country closer to realizing the promise of Open contracting in Kenya.
Through all this, the work of civil society has been well noted through their advocacy for transparency and also building the capacity of both citizens and public officials to strengthen both demand and supply of accountability structures. Through Strengthening disclosure and citizen participation to improve value for money in public contracting in Africa project implemented by Article 19 and ICJ-Kenya, civil society was able to engage extensively with the government to improve disclosure of government information, especially in public procurement.
Through the project implementation process Article 19 and ICJ Kenya engaged in mentoring public servants on how they can enhance the implementation of Executive order No.2 of 2018. In May 2019 ICJ Kenya, jointly with Article 19, Eastern Africa held a meeting with civil society organizations in Nairobi to popularize the findings of the OCDS compliance report. During the training, the participants were introduced to open contracting and OCDS. Their capacity to navigate online platforms on OCDS was also enhanced. Article 19 further held a two-day digital workshop held on the Zoom platform sought to train media, CSO, and public officials from Nakuru County on access to information laws, public procurement legislation, open contracting, and sensitization on open contracting data standards in June 2020. ICJ Kenya and Article 19 also held a meeting with the Director of Procurement at the National Treasury to discuss the findings of the OCDS report. The Director noted that the PPRA was indeed facing challenges with OCDS and that the Executive Order was an opportunity to promote open procurement. He further noted that updating the portal had not been consistent, but the department had been informing bidders about the status of their tenders, but not through the portal. The Director welcomed the research by ICJ Kenya and expressed the need for skill transfer on OCDS to the PPRA. ICJ Kenya has been working to promote disclosure of prospecting information and revenues in the extractives sector.
The project presented an opportunity to revisit the discussion on disclosure of oil and gas contracts, at an opportune time when Kenya joined the league of oil-exporting countries amid conflicts and tension. To this end, ICJ Kenya held a meeting with the Commissioner in charge of Access to Information at the Ombudsman to discuss the status of disclosure in the sector. The Commission committed to working with ICJ Kenya on the information requests that had been submitted to different agencies, to provide redress to the affected communities.
With the engagements ongoing between CSOs and government, it is possible to mobilize the political will to improve public procurement through implementing open contracting.