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Uhuru memo opens loophole in new tenders order

President Uhuru Kenyatta.
President Uhuru Kenyatta. FILE PHOTO | NMG 

President Uhuru Kenyatta has exempted key public entities from an executive order he issued last month compelling State agencies to publish details of procurement tenders in a move that could shield corrupt officials in such agencies.

Mr Kenyatta now says that details of tenders for a select category of goods and services will be exempted from the scrutiny that is seeking to enhance transparency and accountability in the wake of a fresh wave of corruption in government.

The list includes what the circular refers to as classified goods and goes ahead to name the purchase of supplies for State utility agencies and arms as examples of procurements that are protected under that exemption.

That means such purchases will be deemed confidential and will not be disclosed to safeguard national security.

Mr Kenyatta says in the memo signed by Head of Public Service Joseph Kinyua that “works or services in essential utilities (electricity, water and fixed line telephone), procurement arising from the declaration of a national emergency or national disaster, procurement of a classified nature as prescribed by law and low value threshold procurement, and defined and prescribed by law,” are exempted from public scrutiny.

Such classified goods must be the ones prescribed by law, the President says.

The exemption will spare procuring entities from making public the winners of such tenders, specification of goods being procured as well as technical and financial ability of the awarded bidders.

Evaluation teams

The public may also never know the members of the Evaluation Committee and Inspection and Acceptance Committee of the procuring entity in such cases.

Kenya has a bad history with the purchase of classified goods and services having lost billions of shillings in mega scandals such as Anglo Leasing where contracts were awarded to phantom firms that delivered nothing.

The window of classified items was also used by fictitious companies to access taxpayers money promising to supply naval ships and establish forensic laboratories.

Electricity distributor Kenya Power, which is listed among the exempted companies, has been at the centre of a procurement crisis that among others saw multi-million shilling contracts awarded to suppliers that did not meet the required criteria.

Managing director Ken Tarus admitted that the firms were pre-qualified in a manner that was not right and sent a large number of procurement officials packing.

Procurement in public institutions remains a contested area that has forced many into lengthy litigation or supply of poor quality goods and services.

Kenya’s Public Procurement and Asset Disposal Act 2015, says national security organs and other entities that deal with procurement of classified nature are expected to manage their procurements and disposals on the basis of a dual list maintained by the respective procuring entities.

Procuring entities that are not national security organs are required to obtain approval from the relevant cabinet secretary in making the annual list of items categorised as classified.

Confidentiality

“Any person carrying his or her duties or responsibilities under this section shall maintain confidentiality and shall not disclose any information that may otherwise compromise national security,” the law says.

Despite the emphasis on keeping details of such procurement a secret, the High Court in February declared Section 40 of Public Audit Act Number 34 of 2015 and others within the Act as inconsistent with constitutional provisions and awarded the Auditor-General a free hand in auditing the billions of shillings allocated to the military and other national security organs.

This means that the Edward Ouko-led office is free to scrutinise spending by the National Intelligence Service (NIS), the Kenya Defence Forces (KDF) and the National Police Service.

In the 2018/2019 budget, the government plans to spend Sh142 billion towards national security. Since 2011, allocation to security has been on a steady rise from the Sh104.6 billion that was given to the docket in 2010/2011 financial year.

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