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Kenya: Youths, Women, PWDs to Benefit From New Procurement Rules


AllAfrica.com

By Capt. (RTD) Collins Wanderi

OPINION

On 18th June 2013 the Cabinet Secretary for the National Treasury published the Public Procurement (Preference & Reservations) (Amendment) Regulations 2013.

The objective of these regulations is to accord the youth and other disadvantaged groups in Kenya preference in the supply of goods and services to the government. This is in line with one of the key promises of the Jubilee government to give the youth, persons with disability (PWDS) and women at least 30 percent of all supply contracts to the government.

The significance of these regulations is that the National Treasury and all the Treasuries in the 47 county governments shall be required to register and maintain a database for all Small or Micro-Enterprises (SME) or disadvantaged groups that wish to participate in public procurement.

The regulations also seek to favour local businesses by granting exclusive preference to local contractors who supply motor vehicles, electrical goods, furniture and other items which are fully assembled or manufactured in Kenya. Road works and electrical installations of below Sh1 billion, other public works of below Sh500 million and supply of goods and services of below Sh100 million and Sh50 million respectively are now exclusively reserved for Kenyans.

When these regulations come into effect the government and all its agencies will inevitably become the largest promoters of the motto, “buy Kenyan, build Kenya”.

The regulations also make it possible for procuring entities to divide supplies in lots of goods, works and services into practicable quantities which the youth, SMEs and other disadvantaged groups can afford. A new Regulation 31 enjoins the National, County governments and other agencies of government to allocate at least 30 percent of their procurement to the youth, SMEs and other disadvantaged groups.

To enhance compliance with this regulation these procuring entities will now be required to make budgets, issue tender notices and award contracts with at least 30pc participation by the youth, SMEs and other disadvantaged groups. They will also be required to submit quarterly reports to the Public Procurement Oversight Authority for compliance audits.

To participate in the new preferred and reserved public procurement scheme, the youth, women, persons with disability, SMEs and other disadvantaged groups are required to register their enterprises with the relevant government body e.g Registrar of Companies, Business Names, CBOs, NGOs etc.

The membership of such registered bodies may have 30 percent members at most who are not youth, women or PWD but their leadership must be 100 percent youth, women or PWD. Procuring entities will be required to pay for supplies made under this scheme within 30 days. A delay beyond 30 days requires the entity to make 50 percent part-payment and explain the delay in writing.

Regulation 33 which deals with financing is of great importance. While young people often have the benefit of fresh ideas, energy and vigour they are seriously deprived while in competition with older people who have the advantage of time, experience and money. Procuring entities will be required to authenticate Tender Awards and Local Purchase or Service Orders (LPOs & LSOs) and enter into agreements with relevant financing institutions with an undertaking that the contracted enterprise will be paid through the account opened with the financier.

Banks, Deposit Taking Microfinance Institutions (DTMs) and other lenders licensed by the Central Bank of Kenya must also come up with very innovative ways to help the government, the youth, PWDs, Women and other disadvantaged groups achieve the objectives of the new regulations.

The youth, women and PWDs need these contracts but on the other hand government agencies require assurance that the contracted enterprises will perform their part of the bargain and with the requisite skill and expertise. One method to ensure satisfaction of reserved and preferred public procurement contracts may be through the doctrine of cession which is widely used in South Africa.

The law has created a new spectrum of proprietary rights for the youth, PWDs & women by dint of their status in society. These rights are exclusive, reserved and can be quantified in economic and monetary value once a procuring entity has authenticated a tender award and issued an LPO or LSO.

Once an enterprise owned by the youth, PWDs or women gets a contract to perform certain obligations for the procuring entity, such an enterprise acquires a right of claim for payment in anticipation by virtue of regulation 33. Consequently in terms of the doctrine of cession in anticipado, the future right to claim payment may be ceded. This way the youth, PWDs and Women owned enterprises (cedent) would retain ownership of the contractual rights but only surrender to a limited degree the ability to enforce those rights.

An agreement to cede would be in writing and a formal document known as the Instrument of Cession will have to be executed. A cession as opposed to delegation or sub-contracting would be the best method to facilitate access to finance and specialist expertise by the youth, women and PWDs who want to benefit from the preferred and reserved public procurement under the new regulations.

Wanderi is the chairman-Kenya Institute of Forensic Auditors (KeIFA)

Uganda: NGO sues UMEME over contract


New Vision 

By Roderick Ahimbazwe

A non-governmental organisation has taken UMEME to court over failure to make details of its 20-year-concession contract public. 

The power distributor is jointly sued with the Government and the sector regulator in a suit filed at the High Court in Kampala yesterday.

The African Institute of Energy Governance (AFIEGO) along with 1,927 others want the Government to reveal the details of the contract it signed with UMEME.

The public who are the consumers are entitled to know what transpired between UMEME and the Government when signing their contract. That is why we are taking UMEME,  the Electricity Regulatory Authority, the Uganda Electricity Distribution Company Limited and the Government to court,” Dickens Kamugisha, the AFIEGO chief executive officer, said yesterday.

Kamugisha revealed that his organisation had tried to ask UMEME for details of the contract but that they had been told that the contract was confidential.

“We want court to terminate this contract because the terms are very unfair to the people of Uganda who are the consumers of power,” he noted.

Kamugisha observed that since UMEME was getting paid for any power losses, it was not in its interests to improve electricity services because it stood to gain from the rebates.

Kamugisha also wondered why the findings of the Saleh Commission were not being investigated by the Government. The Saleh Commission that reviewed the UMEME contract found out that the tariffs were expensive, while the Government was paying a lot of subsidies to UMEME.

“The commission made several recommendations, which are yet to be implemented,” Kamugisha said.

He said his organisation, unlike the Saleh Commission, does not want the contract reviewed but rather terminated and the running of the electricity sector given back to the Government or put up for competitive bidding. Owen Murangira of Murangira and Advocates, the AFIEGO attorneys, said his client was concerned about the high electricity charges and the poor billing system based on estimation.

“AFIEGO wants electricity to be declared a right so that everyone is entitled to cheap power. It also wants the billing of power by estimation to be declared unlawful,” he said.

Band aid:Why has Africa had such a small role in the famine relief effort?


Michael Hofman

August 24th, 2011 – Prospect Issue 186 FREE.

Dadaab in northeast Kenya is one of the largest refugee camps in the world

 

 

 

 

 

 

 

 

 

 

 

 

 

Our hearts demand a generous response to the Horn of Africa famine. Our heads should now ask some tough questions. The UN general assembly, convening on 20th September, should be the venue for frank answers.

For all the calls from international aid donors for African “ownership” of policies involving the continent, for all their pledges to ensure a role for “stakeholders,” for all their advocacy of “community participation,” one thing stands out. Aid agencies have assumed leadership of the famine relief effort in east Africa, and have taken decisions that will impact the region for years to come. Far from providing a hand on the policy tiller, and a voice at the planning table, Africa has sat back, watching from the sidelines the biggest relief operation on the continent since the Ethiopian famine of 1984.

Of course, operating in such a tough neighbourhood is a huge challenge. The drought embraces some of Africa’s most troubled states: Eritrea and Ethiopia are bitter enemies; Sudan is a pariah; the newly-independent South Sudan is a fledgling in world affairs; Somalia, the worst afflicted by famine, has no government; Kenya, where up to 3m are at risk, is a byword for corruption.

But this does not justify Africa’s absence from the operations room. Nor does it explain why a president or senior minister from one of the afflicted states, or a former leader, or at least a top official from the African Union, has not been chosen by peers to take responsibility for coordinating donor assistance and recipient needs.

Instead, Africa has twiddled its thumbs, postponing by a fortnight an African Union “emergency” summit, scheduled to be held on 9th August. Meanwhile, there has been no one to field some awkward questions.

Many lives have been saved by international intervention, but many have been lost by a late response to an obvious crisis; and many more will be affected by decisions made by aid donors after inadequate consultation. Why was the official announcement of the famine, and the appeal for help, made so late in the day? Children were dying of hunger in northeast Kenya weeks earlier: a fact underplayed at the time by elements of the Kenyan media. Who decided when to declare that the famine was leading to a catastrophe? Were African governments involved in the announcement? If not, why not?

It is unclear who is in charge of relief strategy in the Horn; who takes responsibility for decisions such as endorsing the role of Dadaab, the settlement in north east Kenya, as a centre for relief operations and home to hundreds of thousands of Somalis, fleeing the drought. With a population of over 400,000, Dadaab is one of Kenya’s largest “cities.” But catching up fast will be a second such camp: the result of pressure on a reluctant Kenyan government, despite the fact that the country’s weak coalition doesn’t have the governance and security capacity to absorb a huge flow of refugees to another site.

Africa’s economic recovery has gathered pace in recent years, changing many countries dramatically. But decades of decline have left a grim legacy. In far too many places, the state is weak; its capacity to initiate change has shrunk. The reluctance or inability of African governments to play a part in the response to the famine marks yet another step in their surrender of authority and abnegation of responsibility—and the beneficiaries are the very organisations that play such a big role in disaster relief: non-governmental organisations (NGOs).

The power and influence of NGOs has grown dramatically since African independence 50 years ago. From a few thousand in the 1960s, controlling funds measured in the millions, there are now over 50,000 NGOs operating in South Africa alone.

Although the NGO record on development is mixed at best, the number of NGOs granted consultative status by the Economic and Social Council—the central UN forum for formulating policy on social and economic issues—has risen from 41 in 1948 to over 1,350 in 2008.

As their numbers have grown, they have helped to undermine what the character named Oldest Member, a crusty retired district officer who lives in Kenya and features in my latest novel, Dizzy Worms, identifies as the social contract. In the novel, he asks himself: “What if the government doesn’t deliver? What if the chaps in the north east come to realise that although there is a ‘food deficit’ every year, they won’t starve?… Why? Cos WorldFeed and Oxfam and their UN chums will chip in. All managed by foreigners. Tens of thousands of the buggers come out each year, catching the gravy train that chuffs its way around Africa… If you are starving, the UN will feed you; if the mozzies are killing your kids, Bill Gates will provide a mosquito net; if your road needs rebuilding, DanAid will help… So if the state can’t deliver, why be loyal? Why pay your taxes? Instead you look to big-man politics—to your relative, to your clan, to the ethnic leaders, or the regional boss.”

In other words, a vicious cycle has been created. As the state surrenders many of its core responsibilities to aid agencies, its capacity to manage deteriorates. In the process, it loses some of the country’s brightest and best to the NGOs and UN agencies, who offer salaries that local employers cannot match.

Soon the aid caravan will move on, leaving the two biggest questions unanswered: where has Africa been during the crisis? And why have international aid donors not raised this question themselves? Generosity without accountability is no way to respond to Africa’s gravest famine for 25 years.

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