Should MPs approve tenders worth billions before?
The Treasury now appears to have slammed the brakes on the MPs’ demand for inclusion in the approval of mega projects, insisting that such a provision would be in contravention of Article 223 and 226 of the Constitution and should be reversed.
In a report ,chaired by Kikuyu MP Kimani Ichung’wa for the Budget and appropriations Committee,International best practice now demands that projects worth billlions should be approved by parliament before they are tendered.
However after seeking legal opinion from the treasury on Parliament’s recent demand that contracts worth more than Sh1 billion be tabled in the House for approval before they are signed ,Treasury secretary Henry Rotich told MPs that the requirement contravenes the principle of separation of powers between the Legislature and the Executive.
The National Assembly had sought to actively approve the big contracts after the Budget and Appropriations Committee (BAC) recommended that new rules be introduced to govern the award of big ticket jobs.
The rule was to apply beginning July 1, 2018.
The requirement was introduced through a resolution that the House adopted as it debated the 2018/2019 budget.
The MPs called for more discretion in the procurement and award of major projects by the national government to reduce wastage and prevent loss.
“This committee is concerned that this House is only informed of large projects during review of the budget. International best practice now demands that such projects be approved by parliament before they are tendered, making it necessary that we review the Public Finance Management Act, 2012 to ensure this information is brought to this House at the appropriate time,” BAC, which is said in its report.
Article 223 of the Constitution stipulates that the national government may spend money that has not been appropriated if the amount appropriated for any purpose under the Appropriation Act is insufficient or a spending need has arisen for a purpose for which no amount has been appropriated by that Act.
Mr Rotich told the MPs that the requirement for parliamentary approval “contravenes the principles of separation of power as envisaged in the Constitution and lacks the backing of the Public Finance Management Act, 2012.”
He said the resolution, which is pending implementation, implies that the Treasury and any other accounting officer cannot sign projects for implementation without the approval of Parliament.
“This resolution effectively requires that we should not sign projects without parliamentary approval. This will mean that we need to amend the Public Procurement Act, the PFM Act and the Constitution,” Mr Rotich told the National Assembly’s Committee on Implementation.
Mr Rotich said the recommendation not only contravenes the guidance given by the Public Procurement and Disposal Act, 2015 with regard to procurement of works, contracts, public goods and services but also contravenes PFM Act, 2012 on the roles and responsibilities of accounting officers.
PFM Act, 2012 demands that an accounting officer for a national government entity, Parliamentary Service Commission and the Judiciary be accountable to the National Assembly for ensuring that the resources of the respective entity for which he or she is the accounting officer are used in a way that is lawful, authorised, effective, efficient, economical and transparent.
“Our concern is that there is an implementation challenge and it is upon this committee to recommend that the resolution is ultra-vires the law. The spirit of this resolution is that we break the law as accounting officers,” Mr Rotich said.
Mr Rotich said Parliament runs the risk of involving itself in procurement of government projects when it is supposed to offer oversight.
“It will be a big mistake to implement this resolution. If contracts that are ongoing in ministries and Parliament is asked to approve, it means that this House is part of process and your oversight responsibility will not be clear,” Kamau Thugge, the principal secretary, said.
He said the moment MPs approve the contractual agreements, lawmakers will fall under the provisions of Article 226 of the Constitution that require that a public officer who directs or approves use of public funds contrary to the law will be liable and make good the loss whether he or she is the holder of office or not.
Committee chairman Moitalel ole Kenta asked Mr Rotich to formally write to the Attorney-General for interpretation and forward the response to Parliament to inform lawmakers on whether or not to reverse the resolution in plenary.