Only full scale reforms will work

Kenya has a Judiciary composed of the Supreme Court, the Court of Appeal, the High Court, the Environment and Land Court, the Employment and Labour Court, subordinate (magistrates') courts and numerous tribunals. Kenya has a professional Bar, made up of members of the Law Society of Kenya, States Counsels in the Office of the Attorney-General and prosecutors in the Office of the Director of Public Prosecutions. Litigants can take advantage of the relevant provisions of over two thousand statutes and innumerable Regulations, Rules and guidelines to resolve their disputes in hallowed chambers of the Judiciary. Should they wish to employ alternative dispute resolution mechanisms such as mediation or arbitration, those facilities are available too. That is the infrastructure and system that we have.

So it comes as a surprise that there are those, including our President, who feel that litigation is inherently bad, especially when it interferes with their well-laid plans. Take the recent lament by the President about project delays because of litigation. It is unfortunate that the Head of Government, which Government includes the Judiciary, should object to litigation by unsuccessful bidders for public tenders where there is an allegation or suspicion that the tender was unlawfully or unprocedurally awarded.

Public tenders, whether big or small, have been notoriously problematic for over a decade. In the recent three years alone, the President's pet projects have been held up because of serious flaws in which public procurement was conducted. The most obvious, of course, is the proposal to distribute free laptop computers to all Standard One children in Kenya. Public funds have been set aside in each financial year for the programme, yet it remains unimplemented because of flaws in the tendering process, a situation that has prompted bidders to appeal every time the tender is awarded to yet another bidder. At stake are billions of shillings of public funds and it is in the President's best interests to allow the due process of law to be followed lest public funds be lost or, worse, stolen.

We are still in a transitional phase, as the troubles pin the Judiciary demonstrate, and it will still be a few years before the new systems established by the Constitution are fully operational and all their kinks worked out. If the President wishes for a speedier tendering process, he must direct his Attorney-General to advise him on the most effective procedure to be employed and the reforms required in the law to achieve that goal. It is not enough to lament that lawyers use delaying tactics to frustrate the tender process, threatening to blacklist those that are litigious; he must admit that part of the problems he is facing in public procurement are because of the inherent conflicts of interest to be found among senior members of his government and public service. Hasn't he had to fire some of his Cabinet Secretaries because of their meddling in tenders?

It is not the bidders' fault that his projects have been held up. Nor is it the lawyers' fault or the Judiciary's fault. It is a systemic flaw that he must correct, and that means a sober examination of the public procurement infrastructure, the conflicts of interest inherent in the system, and the integrity of all the players. Proposals of blacklists are all well and good, but they are solutions to symptoms not prescriptions for systemic reform. Either reform the system or stop complaining about it.