Botswana public procurement law

when procurement is undertaken for contracts for goods and services, it must be done so with a system which is fair, equitable, transparent, competitive and cost effective. Kenya too mirrors the same words in its Constitution (it appears Kenya has borrowed from South Africa).

iii) Namibia Procurement law system.

Procurement in Namibia is regulated by Public Procurement Act, 2015. Like Countries above, Namibian system has principles of integrity, transparency and competition. It guarantees procurement integrity by, amongst other things, regulating conduct of staff members of procurement entities and conduct of bidders and suppliers. It promotes competition, for example, through open advertised bidding method. It also seeks to be transparent in procurement business. For example, the Policy Procurement Unit is responsible for issuing standardised bidding documents for mandatory use by procurement entities.

iv) Nigeria Procurement law system

Procurement in Nigeria is regulated by the Public Procurement Act, 2015. This system is also anchored on the principles of transparency, integrity and competition. This has been underscored by Kasim (PhD) in “Public Procurement Reform and Good Governance in Nigeria” (2016)”.

Transparency, integrity and competition towards sustainable development

Learned writers Quinot and Williams-Elegbe in their work “The new challenges and opportunities for public procurement regulation in Africa” in S Williams – Elegbe & G Quinot (eds) “Public Procurement Regulation for 21st Century Africa”, (2018) 1 3” recognise the linkage between public procurement and development. They argue that, in many systems in Africa, the open use of public procurement for social policy (as a way of development) purposes has been a long outstanding practice. Moreover, Quinot in his work ‘Promotion of social policy through public procurement in Africa’ in G Quinot & S Arrowsmith S (eds) Public Procurement Regulation in Africa (CUP 2013) 370 380-403” has further demonstrated the linkage between public procurement and development. He did so by focusing on different preferential procurement rules which are used to implement social policy objectives. He focused on a number of countries including Botswana but with a special focus on South Africa and Kenya. As much as I agree with Quinot on the preferential procurement rules as a mechanism for promoting social policy, I submit that transparency, integrity and competition are also key principles which enhances promotion of social policies.

For exposition, one can argue that the rules relating to these principles curb corruption. Arrowsmith in “Arrowsmith S “Public procurement: basic concepts and the coverage of public procurement rules” in Arrowsmith S (ed), Treumer S, Fejo J & Jiang L”) has observed that, integrity refers to the idea that procurement should be carried out without any influence of corruption. She wrote that competitive bidding and transparency are fundamental tools for addressing corruption. Thus the procurement process becomes open to all participants, competitive for those who qualify to take part and it becomes honest. It should always be remembered that, corruption, as Diallo has put it (in M Diallo, “Corruption, Fraud and African Procurement” in S Williams-Elegbe & G Quinot (eds) “Public Procurement Regulation for 21st Century Africa” (2018) 99 102.) is a major obstacle to economic growth, poverty reduction, job creation and the continent’s structural transformation. Diallo argues that, through a system which encompasses the above principles, there is theoretically no room for corruption therefore leading to development in economic growth, poverty reduction and job creation. Secondly, through a system which promotes competition, everyone has an equal opportunity to participate in business with Government. This in turn, coupled with domestic social policies, leads to the support of businesses and distribution of wealth, therefore attaining development through a system which promotes open economy. A system with integrity causes the public to have confidence in it (see: section 26(g) of the PPAD Act, Botswana). This is encouraging as people will be eager to do business with Government having confidence in the procurement system (See: Arrowsmith “Basic Concepts” in Public Procurement Regulation 9 notes that corruption scandals deter firms from bidding for future contracts”). Thirdly, the roles of oversight institutions and in fact some of which aim at improving public procurement really help to ensure that there is compliance with the applicable legislation. It means, if correctly utilised (i.e. oversight institutions), factors that inhibit development like corruption stand to be dealt with and factors that can cause loss of government credibility are eliminated. I believe that through these principles (transparency, competition, integrity) people may ultimately be educated on procurement processes and they may stand a chance to question what happened in the event of none compliance.

Conclusion

The foregoing represents an overview on examination of transparency, integrity and competition as cornerstone of Botswana’s procurement law system. Arrowsmith (in her work Arrowsmith “Basic Concepts” in Public Procurement Regulation) notes that these principles as key principles for implementing procurement objectives.

I have also indicated that generally, other countries have similar principles in their procurement systems. I submit that without these principles, corruption will prevail, government credibility will be lost, open and competitive economy will not exist and this means that all social policies towards sustainable development may be negatively impacted.

Recommendations

From this overview, I do believe that procurement system of Botswana can better be developed through use of e-procurement. I acknowledge that already there are signs of e-procurement in the system. For example, section 55 and section 56 of the PPAD Act recognise e-procurement as a method of procurement. Consequently, I recommend that the PPADB should do its best to fast track use of e-procurement on the entire procurement process. One may agree with Diallo (Diallo “Corruption, Fraud and African Procurement” in Public Procurement Regulation 114) that, e-procurement helps prevent human errors and it increases transparency which limits opportunities for corruption and bribery.

Perhaps the other important thing is to constitutionalise these principles of procurement. South Africa and Kenya have done it and the reasoning behind this is that, if procurement is elevated to constitutional status everyone will know that breach of these principles amounts to breach of the constitution (see: Williams- Elegbe A comparative analysis of public procurement reforms in Africa 16-17).

Finally I recommend that Botswana should always be on the lookout for best practices around the world which enhances these principles because a procurement system should not be held as a finished product. It must, as Quinot & Williams-Elegbe in their work “Challenges & opportunities” in Williams–Elegbe & Quinot (eds) Public Procurement Regulation”, be considered to be a work in progress.

*Boineelo Mosweu is a Procurement and Construction law Practitioner, holds LLM in Mercantile Law from Stellenbosch University And practices Law at Attorney General’s Chambers. This discussion is an edited version of a paper presented during a lecture at Stellenbosch University.