by: Chisala, Maxwell L.
Now, we have robbers in public service, seated behind polished mahogany desks, dressed in designer business suits, who hardly care what happens to the rest of society if they take away an item meant for public good.”Pius Bigirimana, Uganda (2014)
Public procurement is an important vehicle for government spending functions through which it delivers on its core mandate of providing essential public services. It is estimated to account for more than 15% of Malawi’s GDP and highly vulnerable to corruption. It is important that a country’s public procurement practices aim for maximum efficiency and effectiveness to ensure maximum value for money. Accordingly, over the past two decades, government has heavily invested in reforming public procurement systems to ensure a level playing field for bidders but also increase value for money outcomes of public spending and increase accountability.
So how do we explain the failure of Public Procurement and Disposal Assets Authority (PPDAA) and its enabling legislation (PPDA) to deliver transparent and accountable public procurement processes and its inability to make a dent in the prevalence of corruption in public procurement? PPDA conspicuously lacks two critical Article 9 of United Nations Convention Against Corruption (UNCAC) principles that underpin all successful public procurement corruption prevention efforts: 1) administrative penalties (sanctions) for procurement personnel infractions 2) programmes for regular reviews of procurement proceedings.
Lack of Sanctions for Errant Procurement Personnel
It is clear that it is the connivance of procurement personnel in procurement infractions that breeds corruption infestation in public procurement and the lack of consequences (sanctions) for errant procurement personnel telegraphs a lack of will to prevent corruption in public procurement. Establishing unambiguous sanctions for errant procurement personnel and setting up unambiguous procedures for internal and external accountability for procurement personnel provide incentive for procurement personnel to comply with procurement provisions. PPDA Section 62(1) has only one infraction PPDAA officials have to worry about―refusing to take Oath (which carries a fine of MKl00,000.00 or six months imprisonment)―and none for procurement personnel in procuring and disposing entities it is mandated to monitor.
Lack of Regular Reviews of Procurement Proceedings
Regular reviews or tracking of procurement proceedings telegraph that all procurement processes are subject to rigorous reviews, the possibility that decisions can be reviewed, challenged and overturned by the higher authorities and that bad practices (non-compliance with applicable laws, policies and procedures) can be exposed from mandatory records required of procurement personnel of explanations and justifications for all decisions, changes and actions taken and make corruption difficult.
PPDAA, the entity mandated to protect ‘public interests’ in public procurement, has, to-date, not shone any light on public procurement processes to expose the unethical practices that occur in all phases of the public procurement cycle (pre-tendering, tendering and post-award phases) which its mandate of monitoring compliance by the procuring and disposing entities would require. This has fostered collusion of procurement personnel with bidders/contractors to corrupt the procurement processes and allowed capture by ‘private interests’ of public procurement.
Need for a Procurement Ombudsman
It is clear PPDAA overlooks activities critical to successful corruption prevention efforts in public procurement and needs an Office of the Procurement Ombudsman which can impartially handle inquiries and complaints, procurement and probity audits; conduct investigations into contract award issues, review procurement practices in procuring and disposing entities and provide alternative dispute resolution services for contractual disputes to ensure effectiveness, objectivity and probity in public procurement processes.
Many would no-doubt say corruption in our public procurement is by design and a choice.
And I sadly agree.
Contribution by: Chisala, Maxwell L.
Short Bio: I am a native of the beautiful island of Likoma (Malawi) with unmatched passion for writing on critical issues affecting the legal, social and economic development trajectory of the country I love (Malawi).