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Magufuli steps in to address loopholes in Procurement Act


Daily News

CHABY BARASA,  DECEMBER 31, 2015

In his inaugural address to the 11th Parliament in Dodoma in November this year, President John Magufuli, spoke against wasteful spending of public funds on procurement of luxury goods and called for immediate amendment of the procurement law to address its shortcomings. Our Staff writer CHABY BARASA reports.

TO prove that he is determined to walk the talk, President Magufuli has intensified the anti graft crusade and embarked on a series of austerity measures aimed at checking wasteful government spending.

Accounting for more than 70 percent of government expenditures, it is no wonder public procurement has been in the spotlight, which has seen the suspension of chief executive officers of RAHCO and DART as the institutions are being investigated on allegations of flouting the procurement law

The Managing Director of the Reli Assets Holding Company (RAHCO), Mr Bernhard Tito, has been suspended to pave the way for investigations into allegedly gross procurement flaws in awarding tender for building standard gauge railway line linking Dar es Salaam and Kigoma as well as neighbouring countries of Burundi and DR Congo.

The Executive Officer of Dar es Salaam Rapid Transit (DART). project Ms Asteria Mlambo has also been suspended for similar procurement irregularities regarding the reported dubious process in awarding a tender to an interim service provider of the DART project.

During his inaugural speech, Dr Magufuli spoke at length how the public procurement law was being abused by unscrupulous suppliers who quote inflated and unrealistic prices of commodities, causing massive losses of public funds.

“Under the current law, a house that would normally cost 30m/- could end up being constructed for 200m/-,” he noted and stressed the need for value for money in implementation of public projects, saying that embezzlement of public funds and sub standard projects were among the concerns that the public needed immediate solutions for.

The President’s concerns have stirred to action the Law Reform Commission of Tanzania, which is now seeking recommendations from members of the public, government agencies, private entities and other stakeholders to facilitate the Commission’s research aimed at identifying the practical shortcomings in implementing the Public Procurement Act, 2011 and its regulations.

The research also seeks to identify repercussions on implementing the law to the government and its institutions.

“In order to facilitate the study and for the Commission to comply with the provisions of Section 10(1) (2) of the Law Reform Commission Act, Cap 171, the Commission calls for the public, government agencies and private entities involved to give suggestions, recommendations and opinions regarding the provisions of the Public Procurement Act, Chapter 410 and the Public Procurement Regulations,” says the statement released by the Commission recently.

The comments and suggestions, as per the Commission’s statement, may be general or about specific provisions of the Act or institutional system created by the Public Procurement Act, Chapter 410, based on; market fundamentals and dynamics of law, procurement process and procedural and institutional requirements, value for money, conflicts of laws and human factors such as unethical conduct, personal interest and corrupt practice.

To accomplish the research on time, the Commission has set 30 days, starting 15th December, this year, within which to receive the recommendations, which have to be submitted to the Executive Secretary of the Commission.

Study on the law follows difficulties experienced by the government and its institutions during implementation of the law, both in terms of costs, value for money and management of timelines.

“Experience has shown that since 2001 when the Act was enacted for the first time, there have been difficulties in the implementation of the law so much that objectives for its enactment have not been achieved.

This phenomenon has persisted even when Parliament repealed and re-enacted the new Public Procurement Act in 2004. The procedural requirements before making the actual purchase are both cumbersome and costly,” the statement further notes.

The Commission’s move has been welcomed by scores of stakeholders interviewed, however, most of them are of the view that the problem is not with the law but rather with unethical conduct of some individuals and Procuring entities that deliberately bend rules for their selfish motives.

“Indeed continuous improvement of the law is crucial and that is why we had the 2001 Act replaced by the new Public Procurement Act in 2004,” says Mawazo Mosses, a procurement officer with a Dar es Salaam logistics firm.

According to Mawazo, the country may boast the best procurement law, but unless the society learns to truly abhor corruption and other unethical tendencies, such legislation may not help much.

However a retired public servant, said the Procurement law needed immediate amendment as it currently encourages what he termed as ‘ten percent syndrome’, which he says is to blame for the inflated prices of commodities quoted by suppliers.

He called for stakeholders to air their views so that all shortcomings of the current law could be addressed and called for authorities to especially investigate local government authorities where he claimed procurement irregularities are rife with most tenders being dished out without any proper procedures being adhered to.

“It’s free for all kind of thing,” he observed, but conceded that having the law in the first place, albeit its weaknesses, is better than not having one at all.

He called for the Law Reform Commission to work closely with the ministry of finance, which said had earlier embarked in the process of collecting stakeholders’ views to address shortcomings in the procurement law.

While there are misgivings about the procurement law from some quarters, the Public Procurement Regulatory Authority (PPRA) stated recently that the overall compliance level of audited Procuring Entities (PE’s) in the country has increased from 65 percent last year to 69 percent this year.

However, the rise is still below the 75 percent target set for the Financial Year 2014/15. Procurement Audit Report based on procurement audits and verification audits of 80 PE’s, that included local government authorities, public authorities and Ministries, Departments and Agencies (MDAs).

“The objective of the audits was to determine whether the procedures, processes and documentation for Procurement and contracting were in accordance with the provisions of Public Procurement Act , Public Procurement Regulations and the standard documents issued by PPRA.

“ In addition, the audits sought to determine whether contracts had been or were being implemented in accordance with stipulated contract terms and conditions and whether value for money was achieved in spending public funds in selected construction contracts,” revealed the PPRA Board Chairman, Ambassador, Matern Lumbanga While the overall compliance level of the audited institutions had increased, the average compliance level for MDAs had dropped from 71 pc to 69 pc compared to last year’s results.

On the other hand, public authorities and local government authorities have shown improvements from 68 pc and 62 pc recorded last year to 71 pc and 67 pc respectively this time around.

As per Report, while 27 out of 80 PE’s were assessed to have satisfactory compliance levels above the target of 75 pc, the remaining 53 entities’ performance was below the set compliance target.

On the other hand, the overall assessment of corruption red flags indicated that nine out of the 80 audited entities were assessed to have corruption red flags of 20 pc and above, giving an indication that there is corruption likelihood in the audited projects.

In the course of Procurement audits, the auditors also observed serious delays on contractors payments. Notable delays were observed in road works contracts under Tanroads and water projects under local government authorities.

The delayed payments were mainly due to delays on non disbursement of committed funds from Treasury.

In the wake of the audit findings, accounting officers and heads of the entities with poor performance had been directed to appear before the PPRA Board to show cause why disciplinary and legal action should not be recommended to the competent authority.

On the other hand, the audit reports for all procuring entities and specific projects with detected likelihood of corruption with scores of 20 pc or above are to be submitted to the Prevention and Combating of Corruption Bureau (PCCB), for further investigation.

Other directives require accounting officers of procuring entities where overpayments had been verified to have been made to contractors or suppliers; to recover the overpaid amounts while for ongoing projects, a report on the final account has to be submitted to the Authority for verification.

As the Law Reform Commission continues to receive recommendations from stakeholders, the expectation of many is that whatever loopholes in the current procurement law as directed by President Magufuli would finally be plugged.

Policy Coherence To Boost East Africa Pharmaceutical Industry


Intellectual Property Watch

02/10/2015 BY  FOR INTELLECTUAL PROPERTY WATCH

KAMPALA, UGANDA – The pharmaceutical industry in the East African Community is approaching a higher level of production quality and manufacturing practices. To benefit the industry and increase access to medicines, stakeholders are working towards a united regulatory policy framework aimed at harmonising industrial, health and regulatory policies. 

“The main objective of the industrial policy is to develop a viable local industry which is competitive, reliable, innovative, productive and responsible,” said Ermias Biadgleng, legal affairs officer, United Nations Conference on Trade and Development (UNCTAD). “While the main aim of the health policy is to promote health for all through universal health coverage in terms of prevention, treatment and rehabilitation.”

Biadleng was moderating a panel of experts attending a regional pharmaceutical workshop on policy coherence for local production of pharmaceutical products and other means to improve access to medicine and medical products in the East African Community, held in Kampala, Uganda from 21-23 September. The workshop was organised by UNCTAD, Deutsche Gesellschaftfür Internationale Zusammenarbeit (GIZ) and the East African Community (EAC) Secretariat.

EAC has so far adopted the Regional Pharmaceutical Manufacturing Plan of Action, 2012-2016, the Regional Intellectual Property Policy on the Utilisation of Public Health-Related WTO-TRIPS Flexibilities and the Approximation of National Intellectual Property Legislation, 2013. TRIPS is the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights, which contains flexibilities for developing countries in enforcing the agreement.

“The East African Community Regional Pharmaceutical Manufacturing Plan of Action, 2012-2016, (RPMPOA) is a regional roadmap to guide the East African Community towards evolving an efficient regional pharmaceutical manufacturing industry that can supply national, regional and international markets with safe, efficacious and quality medicines,” said Jennifer Gache, Senior Industrial Engineer, EAC Secretariat.

The RPMPOA is divided into six strategic intervention pillars, which if effectively implemented are expected to lead to a strong local pharmaceutical industry. Implementation of RPMPOA is part of the EAC Industrialization Policy and Strategy, which has prioritized the development of regional pharmaceutical industry among regional industries through collective efforts of the EAC partner states.

According to Thomas Walter, “The implementation of RPMPOA has been much more successful than anticipated. It will be revised next year for the next five years. The next action plan will have a bigger scope, focusing on those areas which have been a bit neglected in the ongoing plan.”

Walter is the senior adviser Industrialization, TRIPS and Pharmaceutical Sector Promotion, EAC-GIZ Programme on Regional Integration.

“We have not had any significant utilization of the TRIPS flexibilities neither by companies nor by governments in the EAC,” said Thomas. “The reasons are complex. One of the main reason companies are not utilizing TRIPS is because all the pharmaceutical products produced locally are generics, and production of generic medicines do not require utilization of TRIPS flexibilities. This situation may change in future as we are moving to new treatment regimes.”

Utilization of TRIPS flexibilities towards improved local production of pharmaceuticals is pillar 5 of the RPMPOA.

World Health Organisation describes a generic drug as “a pharmaceutical product, usually intended to be interchangeable with an innovator product that is manufactured without a licence from the innovator company and marketed after the expiry date of the patent or other exclusive rights.”

In a presentation from the private sector perspective titled, The State Of EAC Internal Market And ECT: Implications For Drug Policy (pdf), Pierre Claver Niyonizigiye from Siphar Pharmaceutical Manufacturers, in Burundi, revealed that according to 2014 RPMPOA estimations, the market share of locally produced pharmaceutical drugs per country is: Kenya 30% of the estimated 558 USD million market, Tanzania 31% of the estimated 350 million USD market, Uganda 5% of the 270 million USD market, Rwanda 0.00% of the 75 million USD market, and Burundi 3% of the 75 million USD market.

The region has about 65 pharmaceutical companies, with Kenya having 42 of the companies.

With the enactment of the EAC Common Markets Protocol, the pharmaceutical industry now has a regional market of over 143.5 million people. Trade between EAC partner states in pharmaceutical products in 2011 was estimated at USD 264 million. This situation presents both opportunities and challenges to the pharmaceutical sector in the region given that only 30 percent of the medicines demand is met through local production.

According to Thomas, “the main cause for this is lack of access to a competitive market. Once the manufacturers have access to a bigger market, not only the national public procurement but also the international procurement agency, the utilized capacity will shoot up.”

Article 35, of the Common Market Protocol calls on partner states not to discriminate against suppliers, products or services originating from other partner states, for purposes of achieving the benefits of free competition in the field of public procurement.

“Many of the procurement laws of the partner states have not adapted to the regulation of the common market protocol even though the heads of state have committed to this protocol,” Thomas said. “It’s up to the heads of government to enforce the required approximation of the legal framework in order to actually create this market. National procurement laws and regional common market still have elements of incoherence which need to be eliminated.”

The EAC governments are the largest clients for the region’s local pharmaceutical products. The preferred method of procurement is international competitive bidding. Other methods used are restricted procurement, direct purchase and local tenders. The source of funds for this procurement comes from revolving funds, government funding from the central government and complementary financing, and grants from Global Fund for AIDS, Tuberculosis and Malaria and development partners.

To assist the manufacturers develop their capacity, EAC governments have provided a number of policy incentives. These include: tax and customs exemption, price control, preferential procurement and import classification.

In the EAC treaty, Chapter 21, Article 118 provides for developing a common regional medicines policy, which includes establishment of quality control capacities, good procurement practices and harmonisation of drug registration procedures.

Benchmarking

Regional economic communities can borrow from each other aspects of regulatory framework. The EAC is borrowing from the Ghana model, whose government has established a very supportive system to develop the local pharmaceutical industry over the last 20 years.

Kwabena Asante-Offie represented the Pharmaceutical Manufacturers Association of Ghana at the conference. “In East Africa,” he said in a panel discussion, “the industry sector is leading the development of the pharmaceutical sector. While in West Africa, it was the ministry of health that led the development of a robust pharmaceutical industry”. This is because the industry started more as a public health concern rather than an industrial development strategy.

Other Policies

Other key policy and regulatory initiatives of EAC are at the working stage. These include an EAC Anti-Counterfeit Bill (2013) which is being modelled into the Competition Act, the proposed African Community Medicines and Food Safety Commission Bill, the Medicines Registration Harmonization initiative, launched in 2012, and the procurement of essential medicines and health supplies.

Rwanda: Parliament Defers Procurement Bill


The New Times (Kigali) via AllAfrica
January 20, 2015

The parliamentary Standing Committee on Budget and Patrimony, yesterday, sent back to the drawing board a new draft law that seeks to professionalise the procurement sector.

Legislators said the Procurement Bill had “a few issues” of unclearly stipulated legal assertions that required amendments.

Further examination of the Bill could not continue until the issues were sorted, said Constance Mukayuhi Rwaka, the chairperson of the committee.

“We need efficiency and value for money in the procurement sector. To attain that, we need clearly stipulated laws that will call off all the issues that have existed, for well functioning and sustainable procurement in the country,” said Rwaka.

Her concern was echoed by MPs Jeanne d’Arc Nyinawase and Fidèle Rwigamba, who said they could not start examining the Bill when there are some issues that needed to be clarified.

“The Bill still provides for two different entities; one segment that seeks to govern the procurement profession, and another that establishes Rwanda Association of Procurement Professionals. We have to harmonise the two and come up with one legal framework,” said Nyinawase.

This was the second time legislators are sending back the Procurement Bill for further streamlining.

OLYMPUS DIGITAL CAMERA

The Bill was drafted to streamline activities of the procurement sector following repeated anomalies and incidents of corruption-related undertakings, especially as captured by various financial year reports by the Office of the Auditor-General.

However, Augustus Seminega, the director-general of Rwanda Public Procurement Authority (RPPA), said the government wished to draft one law to avoid risks identified in drafting two separate laws; like diverting from a standard format of other laws on professional associations, as well as putting interconnected provisions in two separate documents.

It was agreed by all stakeholders, Seminaga said, that the Bill would entirely focus on the mechanisms governing procurement profession, with other provisions included in one Bill.

“We have agreed that the title reflects properly the content of the law. It will focus on procurement profession,” said Kampeta Sayinzoga, the permanent secretary at the Ministry of Finance and Economic Planning.

Scrutiny of the draft law is expected to commence in February after legal advisors from relevant institutions make the required changes.

Once enacted, the law is expected to help close the loopholes that have been prevalent in the sector, especially in public procurement, where, according to the Auditor-General, about 30 per cent of tenders awarded by public entities do not comply with procurement guidelines.

The report that covered the period between August 2012 and June 2013, said that more than Rwf23 billion was lost in poor contract management procedures, while nine contracts, worth Rwf908 million, were abandoned by contractors.

Procurement loopholes were noticed in project design and study, bidding documents as well as enforcement of contracts, among others.

In a recent interview with The New Times, Seminega blamed procurement errors on low skill levels, lack of experience and laxity among procurement officers.

“Public procurement has improved. We are coming from a time when all public procurement was done by one central entity. Now, the government has built capacities, institutions can manage to do own procurement. It is a process to achieve efficiency in the sector, that is where we are headed,” said Kampeta.

Will Bill close gaps in procurement?

Rwanda: Latest – Minecofin PS Appears in Parliament Over Draft Procurement Law


The New Times (Kigali)  via AllAfrica
January 19, 2015

 

Professional procurement officers in the public and private sector will add value to Rwanda’s procurement sector, Kampeta Sayinzoga, the Permanent Secretary in the Ministry of Finance, told The New Times.

She was appearing before the Parliamentary Standing Committee on Budget and Patrimony to defend a draft law that seeks to professionalize procurement this morning.

“The added value of this [new] law is that, it actually brings standards and professionalism in the procurement sector for both public and private circles,” said Kampeta.

Once enacted, the law is expected to close the loopholes that have been prevalent in public procurement sector where, according to the Auditor-General, about thirty percent of tenders awarded by public entities do not comply with procurement guidelines.

The new law will strengthen the existing legislative framework that governs public procurement by streamlining all the institutional and legal frameworks governing procurement management.

According to the Auditor General’s report covering the period between August 2012 and June 2013, more than Rwf23 billion was lost in poor contract management procedures, while nine contracts, worth Rwf908 million, were abandoned by contractors.

In a recent interview with The New Times, Augustus Seminega, the Director General of Rwanda Public Procurement Authority, blamed procurement errors on low skill levels, lack of experience and laxity among procurement officers.

Article 2 of the new draft law say that the profession of procurement shall be entrusted with persons who have knowledge, governed by ethical rules and international best practices and those who have chosen to practice it under supervision of a professional body in charge of establishing a code of professional practice.

Ghana should repay $3.8 million to Global Fund in faulty condom deal


Lauren Gelfand
December 11,  2014

condoms1

 

 

Tender for more than 120 million condoms was riddled with fraud — and the goods were bad

Ghana’s Ministry of Health spent some $3.8 million of a Global Fund grant on faulty condoms procured in a tender that was riddled with fraud, the Office of the Inspector General has found. In addition to developing a plan to recover the funds, the Secretariat will be placing all purchasing for Ghana under the pooled procurement mechanism and requiring greater oversight by the local fund agent.

The investigation report published on 11 December confirmed that the procurement of 128 million male condoms purchased for the Ghana Health Service between 2010 and 2013 were “substandard, over-priced and bought through a non-competitive tender process involving forged documents”.

The tendering process was flawed from the outset, according to the report. Advertised only locally for a very short time period, the bid was whittled down to a single source with the immediate disqualification of two other bidders. An evaluation by the Ghana Central Tender Board was not reviewed, making the process decidedly untransparent.

Only a month after the bid was approved, the MoH agreed to a 35% per unit cost increase — an increase worth nearly $1 million over what had been a fixed-price contract that was ostensibly not subject to adjustments. According to the investigation, there is no evidence that the supplier, Global Unilink, provided the Ghana Health Service with documentation including market-pricing data to justify the price increase.

Moreover, the tender was predicated on the provision of falsified documents. Global Unilink provided misleading information related to where the condoms were manufactured, including a falsified manufacturer’s certificates that declared the condom manufacturer was WHO-certified.

This led to the other major problem: the condoms were of decidedly inferior quality. The investigation confirmed that the supplier did not source the product from a WHO-certified manufacturer, as it had been contracted to do. The purchased prophylactics did not meet WHO specifications or standards, even though the samples submitted during the tender for quality tests did come from a WHO-certified manufacturer. What this means is that quality condoms were provided for testing and low-quality ones supplied for use.

These quality issues came to light when end users reported that they burst too easily, did not contain enough lubricant and, according to one Ghanaian media report, were not big enough.

Why the Ghana Health Service failed to continue to carry out quality control tests on the Be Safe condoms remains to be seen; going forward, Aidspan understands from the Global Fund Secretariat: “the Secretariat will provide the Ghana Food and Drug Authority with advance notice of the dispatch of critical health products and commodities procured for Global Fund programs from whatever source. The LFA will verify the quality testing has been conducted before distribution.”

Other safeguards have been put in place, specifically related to the procurement of health products and commodities for Ghana. Since 2012, Ghana has been enrolled in the pooled procurement mechanism and global drug facility, meaning that ARVs, HIV test kits, drugs and diagnostic kits for malaria and TB drugs are all now procured by the Global Fund on Ghana’s behalf. The MoH is now only responsible for the procurement of products such as gloves and cotton swabs.

The Secretariat should pursue the recovery of the full $3.84 million spent on the faulty condoms — funds that Ghana itself has since 2013 been seeking from the supplier, Global Unilink, according to Ghanaian media reports.

A majority of the faulty condoms remain undistributed, stored in an MoH warehouse that, itself, has been subject to major scrutiny for the poor quality and conditions. In one Ghanaian media report, the facility was described as having a leaky roof and poor temperature controls — less than ideal conditions even at the best of times. The condoms are to be withdrawn and destroyed by the MoH and Ghana Health Service in line with “international procedural and environmental regulations” — whether this will happen is unclear.

Ghana has a generalized HIV prevalence rate of under 2% but within certain key populations, including commercial sex workers and men who have sex with men, the rate is considerably higher. Results from a demographic and health survey supported by the Global Fund should be published in 2015: the best way to determine whether there has been an increase in infection rates. It will not, however, be possible, to make any causatory inference that a spike in infections is due to the use of these problematic prophylactics.

Uganda: Procurement Challenges Dog many Local Governments


NTV Uganda

The Public Procurement and Disposal of Public Assets PPDA, says that the procedures on contract awards and executions at local government levels remain weak. PPDA’s Director for Procurement Audit and investigation Benson Turamye  notes that the gap needs quick redress considering the Trillions of shillings in procurements handled by both the Central and Local governments.

Nigeria, South Africa At War Over Seized $9.3 Million Cash


360News

September 19,  2014

Detectives in South Africa have rejected Nigerian government’s explanations of the purpose of the $9.3 million cash seized from two Nigerians and an Israeli as “flawed and riddled with discrepancies”.

The suspects told South African authorities that the money was meant for the procurement of arms for Nigerian intelligence agencies.

“… Although various explanations about the money were given to the investigating officer, these explanations were flawed and riddled with discrepancies,” the South African prosecution agency said in a statement sent to this newspaper.

The jet used to ferry the money is owned by Ayo Oritsejafor, who heads the Christian Association of Nigeria, CAN.
Mr. Oritsejafor, a cleric, said he is not aware of the arms deal. He said although he owns the aircraft, it was managed by another company, Eagle Air Company, which in turn, leased the jet to a third party, Green Coast Produce Limited.

The Nigerian government in an unsigned statement, Tuesday, said it has provided South African authorities with documents and receipts to prove that the transaction was “legitimate.”

Nigerian security officials also said that it was normal practice to procure arms with cash.

“The Federal Government has submitted relevant data and documents on the transaction to South Africa and insisted that the transaction was legitimate. It also clarified that the funds were not laundered or smuggled for any covert manoeuvres. No launderer will be audacious to fly into a country in a chartered jet with such a huge cash,” a statement by PRNigeria, an agency that regularly disseminates media statements for the military, police and other security agencies in Nigeria explained.

The statement tallies with what top security officials told PREMIUM TIMES in confidence that the money was legit as the government decided to buy the arms secretly; because the U.S. government had allegedly blocked its efforts to buy arms openly.

However, the government’s explanation does not seem to be gaining traction with South African investigators as the Asset Forfeiture Unit, AFU, of the National Prosecuting Authority of South Africa, NPA, has obtained a court order to freeze the money.

The NPA, in a statement sent to PREMIUM TIMES Wednesday said that the manner in which the money was brought into the country breached the country’s laws that deal with the transfer of foreign exchange of such proportion.

“The money was initially detained by the South African Revenue Service (SARS) as it was not disclosed or declared at customs, and was above the prescribed legal limit for the amount of cash that may be brought into the country,” it said in a statement.

Investigators also cast serious doubt on the Nigerian government’s explanation that the money was meant for the procurement of arms and that it has provided documents and receipt to back its legitimacy, raising serious concern that suspects might have been in the process of laundering the money before it was intercepted.

The NPA said its investigation shows that Tier One Services Group, the firm Nigerian government claimed it wanted to procure the arms from, is not authorised to sell or rent military hardware.

“In court papers, the NPA submitted evidence that Tier One is not registered with the National Conventional Arms Control Committee and is thus not authorised to enter into any agreements regarding the sale and/or rental of military equipment,” the statement read.

Tier One has apparently issued an invoice to a Cyprus based company, ESD International Group Ltd, ESD, in respect of the procurement of armaments and helicopters to be delivered to Nigeria. However, South African investigators said the time when the invoice was prepared and the time the money was brought in threw up some serious issues of its true intent.

The money was ferried to South Africa less than a week from the date the invoice was prepared (September 8, 2014).
The involvement of a Cyprus based company also heightens the suspicion that this may be a case of classical money laundering. Cyprus is notorious for its secretive banking system, which attracts shady characters and corrupt politicians looking to dry-clean ill-gotten funds.

The NPA added that the transaction did not follow normal procedure in the procurement of the kind of equipment it was alleged to have been meant for.

Op-Ed: We’re withdrawing from the Arms Procurement Commission, and here’s why


Daily Maverick

By A FEINSTEIN, P HOLDEN AND H VAN VUUREN

August 29, 2014

The Arms Deal was a uniquely damaging moment in our young democratic history. It was concluded after decades of uncontrolled spending on foreign and internal wars by the apartheid regime. From the signing of the contracts in 1999 up to R70 billion of public money continues to be spent on weapons of questionable utility. The country was not and is not facing any meaningful military threat. But rather the most pressing problems that faced us then as they do now are inequality, poverty and unemployment

Since its inception the Arms Deal has been dogged by well supported allegations of corruption. We together with many other activists have consistently challenged the State to fully investigate and prosecute these allegations. Four previous investigations have failed to fully probe the Arms Deal.

We have engaged with these matters in different capacities over many years and we have done this out of the commitment to the primacy of the Constitution and the rule of law in our democracy. Given this commitment we believe that all allegations of corruption must be investigated and prosecuted without fear and favour.

After careful consideration, with great disappointment we have decided to withdraw all participation in the Seriti Commission of Inquiry into the R70 billion Arms Deal.

The appointment of the Commission raised great expectations that the truth would finally be established, and that this would challenge the interests of politicians, middlemen and large corporations in one of the most corrupt industries in the world. The Commission had the prospect of serving not only South Africans but all people across the globe campaigning against the devastating impact of corruption in the arms trade.

The Commission has failed on both accounts. It has missed a historic opportunity to support the struggle for transparency and accountability of the powerful.

We have not made our decision lightly. It follows nearly two years of actively trying to support the work of the Commission, assisted by an exceptional pro bono legal team led by Lawyers for Human Rights.

We have taken our decision due to serious and fatal concerns we have regarding the manner in which the Commission has conducted itself. There are four key reasons why we have decided to withdraw:

  1. The Chairman, Judge Willie Seriti, indicated that he was not interested in hearing evidence from witnesses about documents that they had not themselves written. Judge Seriti made this ruling during the testimony of Member of Parliament Mr David Maynier. This prevented Mr Maynier from giving any substantive evidence, as he was not the author of documents that emanated from investigations or government departments. This is particularly disturbing as this limitation was not applied to previous witnesses who were supportive of the Arms Deal. The implication of this ruling is that only those who have been involved in the Arms Deal can introduce evidence. How the Commission intends to discover the truth by only hearing from participants in the Deal is a mystery.

The Chair has also ruled that witnesses should only speak to corruption allegations of which they have personal knowledge. The logical conclusion of this ruling is that only those who have been corrupted, who have corrupted others, or who were intermediaries in such corruption, can give evidence of it. It is obvious that all of these parties have an interest in hiding the truth. Why would the Chair choose to rely solely on their opinions?

We have conducted extensive research into the Arms Deal. We have analysed thousands of documents, and interviewed people who are able to point to where evidence of corruption is likely to be found. We were not direct participants in the Arms Deal. If we are not allowed to talk to documents that we have not written, nor speak to corruption allegations based on documentary evidence, there is no point in our appearing as witnesses. This process will serve to undermine the critics without addressing the evidence they have accumulated. This can only serve to protect the corrupt and compromised.

In response to our attempt to resolve this issue, the Commission has informed us in their correspondence of 27 August 2014 that “The decision [to admit evidence of which a witness not the author, nor facts within a witness’ personal knowledge] will be influenced by the circumstances of each case, including the document’s relevance to the terms of reference and the purpose for which it is sought to be used.” There is no basis on which we can have any expectation that we will be permitted to give evidence on matters not within our personal knowledge, and rely on documents we are not the authors of. The Commission’s rulings to date in respect of other ‘critic’ witnesses, and the Commission’s rulings to date in respect of our cross-examination of other witnesses, clearly indicate the contrary. The Commission has not undertaken that it will now reverse its previous approach. (If it did so, procedural fairness would require the recall of a number of witnesses). Read more here.

Nigeria: Experts Pick Holes in Procurement Process


This Day

By James Emejo

 Say absence of  governing council violates enabling act.

Renewed controversies have trailed the continued existence of the Bureau of Public Procurement (BPP) without the proposed National Council on Public Procurement (NCPP) which ought to endorse the former’s activities as provided by the Public Procurement Act 2007.

Prof. Paul Idornigie of the Nigeria Institute of Advanced Legal Studies told THISDAY that one of the objectives of the BPP in ensuring probity, accountability and transparency in the procurement process is in doubt because the NCPP is yet to be established as required by the Act which also gave life to the Bureau.

Speaking on new issues of transparency and access to information in the public and private sectors at a one-day seminar themed: “Emerging Issues on Good Governance in Nigeria” which was organised by the Institute of Chartered Secretaries and Administration of Nigeria (ICSAN) Abuja Chapter, he also carpeted the Federal Executive Council (FEC) for allegedly usurping the function of the NCPP by approving and awarding contracts at its weekly meetings.

He said the BPP could not be said to be observing good governance in its operations when the NCPP which is supposed to vet its activities is yet to be created as prescribed by law.

He further chided members of the National Assembly for being pre-occupied with frivolous oversight functions and not ensuring that laws passed are actually implemented to the letter.

The professor said:”I am actually worried about the effect on contracts being awarded by the Federal Executive Council on this issue. I won’t use the word illegal; all I’m saying is that the National Assembly members are here: if they believe that they don’t need the National Council on Procurement, they should amend the law. But we cannot have a law that provides for NCPP and since 2007, the council has not been established.”

He said:”I have a challenge with the public procurement act when talking about transparency; this was a law passed to ensure transparency and accountability. Now this law was passed in 2007 but as we speak, we’ve not had a National Council on Public Procurement and yet, we have the Bureau of Public Procurement which ought to take directives from the Council.

“All the thresholds being observed in the ministries, departments and agencies of government are determined by the BPP but the Bureau needs the approval of the National Council on Privatisation to do this.
“How do you run a system where the law provides that there should be a council and all we see every Wednesday is that the work that ought to be done by this council is being taken by the Federal Executive Council. Is that transparency?”

According to Idornigie:”If the government feels we don’t need the National Council on Public Procurement, let them amend the law to provide that it is the FEC that would play this role. One of the objectives of the BPP is to ensure probity, accountability and transparency in the procurement process. Now how can BPP do this when it has no council?”

He added that though the governing council for public procurement had not been set up, yet the BPP had been issuing financial thresholds, stressing that “the whole public procurement act made no reference to the FEC and yet, it is the FEC that approves matters which ought to be approved by the National Council on Public Procurement.”

In the same vein, Chairman, ICSAN, Abuja Chapter, Mrs. Stella Anukam, said there were several laws which had been enacted by the National Assembly but yet to be implemented.
She said:”When it comes to implementation, you would be shocked. The public procurement act is one and if the major body set up to ensure the implementation of that act since 2007 is yet to be in place I think we should begin to worry.”

Anukam, however, said ICSAN would convey the summit resolutions on issues raised to relevant authorities and press for concrete action.

Meanwhile, speaking while declaring the seminar open, Minister for Information, Mr. Labaran Maku, warned of severe consequence in neglecting good governance which he described as necessary for redeeming the country’s battered image.

He blamed the absence of good governance on the incessant political instability witnessed in the polity especially during the military regime.

Maku said the way to go was for citizens and leader to take responsibility for their actions as well as reappraise societal values.

He said everybody must be disciplined to respect rules adding that “the cutting corners syndrome is like Ebola virus” which does no good to anybody.
He added that serious people were needed in government to ensure things are done the right way.

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