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1. BACKGROUND OF STUDY
Over the years, many measures have been taken by the governments of Ghana and Kenya to address corruption in public sector procurement. According to Transparency International’s (TI) Corrupt Perception Index (CPI), Sub-Saharan African countries top the list of the world’s most corrupt nations. Transparency International (TI) a Non Governmental Organization (NGO) based in Germany, publishes annually a list of countries perceived to be corrupt. The countries are ranked from top to bottom with the topmost countries as the least corrupt, while countries that appear at the bottom of the least are deemed the most corrupt countries. The report scores countries 0 (highly corrupt) to 100 (least corrupt). Recent publications from 2012 to 2016 (Table. 1 below) reveal that Ghana performed better than Kenya in the past five year.It is therefore important to find out how and why Ghana’s score according to the table is better than Kenya in the past five years. Again, what lessons if any can be drawn from Ghana’s performance to benefit Kenya in the fight against corruption in public sector procurement. The report also shows that most countries in Sub-Saharan Africa score below 50, which is an indication of high prevalence of corruption. Therefore other countries in Sub Saharan Africa can learn from anti-corruption laws and institutions. These publications have served as a booster for many countries in the developing world to enact laws to improve the level of corruption. In Africa, CPI report has been debated in parliament, attracted media attention, used by citizens to question the performance of the governments in the fight against corruption. It has helped multilateral organizations and the donor community who provide loans and grants to Ghana, Kenya and other developing countries to revise policies to curb corruption. Many countries at the bottom of the score have been under pressure to enact laws and establish institutions to fight corruption.
TRANSPARENCY INTERNATIONAL (CPI) FIVE YEAR RANKING – GHANA AND KENYA- TABLE 1
The dissertation will look at measures that have been put in place by the governments of Ghana and Kenya to address corruption in public procurement and the effectiveness of these anti-corruption measures. In Ghana, Article 35 (8) of the 1992 constitution states, “the government shall take steps to eradicate corruption and abuse of power”. This provision in the 1992 constitution led the government of Ghana to enact Public Procurement Act 2003 (Act 663) to harmonize public procurement processes to ensure acquisition of goods, works and services for the government is conducted in a transparent and non-discriminatory manner.
In Kenya, the government enacted Public Procurement and Disposal Act (PPDA) in 2005 this Act established the Public Procurement Oversight Authority (PPOA) to oversee all procurement in the public sector, making it mandatory for all major procurements to go through a competitive bidding process. Public Procurement is a function of government that is susceptible to corruption in many countries around the world. The vulnerability of public procurement to corruption is due to the huge expenditure in the acquisition of goods, works and services for the state. In many countries, government expenditure in acquisition of goods and services is by far the largest expenditure. In developing countries, it is estimated that public procurement is about 10 – 25% of Gross Domestic Product. In Kenya for example, the size of public procurement is about 11% of GDP. Kenya Anti-Corruption Commission (KACC) estimates that 80% of all corruption in the country is through public procurement. In Ghana the story is not different, Dagbanja stated that public procurement is about 14% of Ghana’s Gross Domestic Product, he added that 70% of corruption in the country is through the acquisition of goods, services and works by the government. The African Union estimated that in 2002, corruption cost the continent over 148 billion dollars, compared to 22.3 billion dollars of financial assistance to Africa from overseas partners. Over the years, several efforts have been made by Ghana and Kenya at national and international levels to combat corruption. According to the TI report cited above, although anti-corruption laws have been passed in many African countries in tandem with the establishment of relevant anti-corruption institutions/agencies and the ratification of relevant international conventions, corruption is still on the increase in Africa. These two countries appearing on the list of the world’s most corrupt nations for years is a major concern among many Ghanaians and Kenyans. Corruption in public procurement is a serious problem that affects both developed and developing countries all over the world. It has dominated national and international forums, and over the years, many efforts have been made to find a solution to the corruption menace but to little avail. Recently, the Vice-President of Ghana (Alhaji Bawumia) in his frustration to curb corruption in public procurement made this statement, “If you want to tackle corruption you have to tackle procurement” The Vice-President made this statement when he visited the office of the Public Procurement Authority (PPA) and informed PPA officials of the government’s plan to introduce e-procurement to make public procurement more transparent. It can be inferred from the Vice-President’s visit and statement that the government’s aim of introducing e-procurement is to boost efficiency, curb corruption and to make public procurement more transparent. Public procurement is an area vulnerable to corruption because of the huge expenditure involved in the acquisition of goods works and services for the government.In September 1996, the World Bank’s former President Wolfensohn announced that the World Bank would do everything within its power to fight “the cancer of corruption.”A well-known fact around the world is that corruption distorts international trade, undermines democratic institutions and rule of law and a strain on scarce resources in developing countries.Due to the seriousness of corruption and its detrimental effect on economic development in Ghana and Kenya, successive governments have been making promises during campaigning to tackle corruption and improve living standards, but they usually leave office with more corruption scandals than when they came into power. President Kibaki of Kenya, whose presidency lasted from 2002 to 2013 won election because of a campaign promise to tackle corruption. In his first address to parliament in February 2003, he stated, “Corruption will now cease to be a way of life in Kenya and I call upon all those members of my government and public officers accustomed to corrupt practice to know and clearly understand that there will be no sacred cows under my government.”
. Despite these promises/assurances, President Kibaki ended his presidency with widespread corruption allegations with billions of dollars of public funds unaccounted for. Many people begin to question the effectiveness of anti-corruption institutions created since independence in Kenya.
In Ghana, President John Agyekum Kuffour whose presidency lasted from 2002 to 2008, pledged to tackle corruption in the public sector. His campaign slogan was,“ Zero tolerance for Corruption”.Addressing the nation, President Kuffour assured Ghanaians there would be “zero tolerance for corruption” in his government and accused previous governments of being corrupt. Later at a durbar of Chiefs and people at Kintampo in the Brong Ahafo Region, the president said “Government will not allow any minister of state or official to take the law into his or her own hands. Anyone, even including President Kuffuor, who falls foul of the law, will be dealt with according to the tenets of the Constitution”  President Kuffour at the end of his presidency, was quoted as saying “corruption is as old as Adam”This statement attracted condemnation by many Ghanaians who felt that the president had conceded defeat in the fight against corruption in the public sector. The president later defended his comment by explaining that “saying corruption is as ‘old as Adam’ is not an endorsement” but rather he was affirming how ancient and old corruption was, and that he was calling for collective efforts curb it.
1.1 Recent Corruption Scandals in Ghana and Kenya
Since Ghana and Kenya gained independence in 1957 and 1963 respectively, there have been serious allegations of corruption involving high-ranking government officials. The governments of the two countries have created many anti-corruption institutions to prevent, detect and sanction public officials involved in corruption, yet corruption is on the increase. Some of these corruption allegations that have dominated local and international media and drawn international condemnation are outlined below.
In Kenya, the Goldenberg Scandal under the presidency of President Mwai Kibaki was a major setback to the government. The president established a commission of enquiry to investigate alleged corruption by Goldeberg International. During the investigation, it was revealed that the Kenyan government had lost over 850 million US dollars which is about a fifth of Kenya’s Gross Domestic Product (GDP). According to the BBC, the amount lost in this transaction alone was about 10% of Kenya’s GDP. The investigation further revealed that Goldenberg International looted this huge money from the Kenyan Central Bank in a fraudulent transaction with the help of high-ranking government officials. This was a bombshell to the ruling government, and the commission of enquiry in their investigation implicated former president Arab Moi’s two sons and his daughter in the scandal. Despite having spent taxpayers’ money to appoint a commission of enquiry with many years of sitting and investigation, the government has not been able to prosecute the perpetrators, according to the commission. It is believed that one major reason why corruption in the public sector remains endemic is the lack of political will. When people in government are involved in corruption, it will be difficult to root it out. The general belief among many Kenyans today is that no one was charged because this corruption scam involved former president Arab Moi’s children who are now members of parliament and other high-ranking government officials. Many citizens of Kenya continue to question the effectiveness of the government and other institutions established in the fight against corruption. Lack of political will to tackle corruption in the public sector is a growing concern in many countries around Africa.
In Kenya, another big corruption scandal in the public sector that hit President Mwai Kibaki’s government is the Anglo-Leasing Scandal. This was the president who came to power in 2002 and promised citizens that he had come to fight corruption and recover all monies lost through corruption by his predecessor. It was alleged that the government paid a huge amount (21million dollars) in a fictitious contract with high-ranking government officials and ex-government officials involved.The transaction was signed with a British-based firm to supply passport equipment from France. Anglo-Leasing was paid over $33million (£21million) to supply high-tech passport equipment. Other non-existing companies were involved, and the transaction was later found to be a scam. The government admitted lack of competition and irregularities in the award of the contract. This led to the suspension of four government officials involved in the fraudulent transaction.Even though some government officials were suspended as a result of the scam, the perpetrators continue to walk as free men and women; others are enjoying their booty abroad. Many Kenyans continue to question the government’s inability to prosecute the perpetrators. It is widely believed that high-ranking government officials were behind the scam.
In Ghana, a recent corruption scandal worth mentioning is Alfred Wayome Judgment debt of over GHC 51million ($11,658,329.70.). Alfred Wayome, a businessman was paid over 11million dollars as judgment debt during Confederation of African Football (CAF) 2008 Stadia construction. The businessman who was also a financier of the ruling National Democratic Congress (NDC) at the time claimed that the money was paid to him because of his contribution towards the construction of Stadia to host the CAF cup in 2008. The Attorney General’s report in 2010 stated that it was an illegal payment. In 2014 the supreme court of Ghana ordered Mr. Alfred Wayome to pay the money back to the government. In spite of the Supreme Court ruling, a fast track high court in Accra acquitted the businessman on March 12 2015. The general belief among ordinary Ghanaians is that top officials of the ruling NDC government benefited from the judgment debt. Others also believe that Mr. Alfred Wayome used part of the money to finance the ruling party, and that is why the government has ignored the Supreme Court order to retrieve the money and the businessman is now walking as a free man. Looking at the examples given above, it can be argued from the ongoing discussion that corruption in the Public Sector is a serious problem in Kenya and Ghana. The question many citizens of these two countries continue to ask is whether the fight against corruption will ever be won.
The dissertation consists of 5 chapters. Chapter One is an introduction with highlights on recent corruption scandals in public procurement that has hit the governments of Ghana and Kenya. Chapter Two outlines a brief country profile and legal system of Ghana and Kenya, purpose of the research, research question and methodology. Chapter Three presents literature review, including international anti-corruption conventions, anti corruption laws and institutions in Ghana and Kenya. Chapter Four presents major findings and recommendations that will help to improve anti-corruption institutions in Ghana and Kenya and other developing countries. A “way forward” conclusion drawn from Chapter Four is presented in the last chapter of the dissertation (Chapter Five).
2.1 Country Profile – GHANA
The Portuguese were the first Europeans to reach Ghana, formerly known as Gold Coast.In 1482 the Portuguese built Elmina Castle and named it ‘Da Mina’ meaning ‘the mine’ because of large gold deposits on the land at the time.Then in 1642, the Dutch gained full control of the Gold Coast after the Portuguese had left. Other Europeans who later developed interest in the Gold Coast were the Swedes, the Danes and the British – they all traded in gold during their time in the Gold Coast. The British established the Gold Coast as a colony in 1872 and ruled the country until 1957 when Ghana gained independence and changed the name to Ghana. Ghana shares borders with Cote d’ Ivoire to the west, Burkina Faso to the north, Republic of Togo to the East and the Gulf of Guinea to the South.
In Ghana, Article 11 of the 1992 states that the laws of Ghana shall consist of the following: “The Constitution, Enactments made by or under the authority of the Parliament established by the Constitution or legislation. In addition, orders, rules, regulations by any authority or person mandated by the constitution. English Common Law, English Doctrines of Equity and Customary Laws of the land are all parts of the Ghanaian law.The 1992 constitution of the republic of Ghana makes provision for an independent judiciary and one parliament.
2.2 Country Profile – Kenya
There are a lot of similarities between Kenya and Ghana in terms of language, customs and legal systems, except that while Ghana is in West Africa, Kenya is in the East of Africa. Kenya, formerly known as British East Africa, gained independence from Great Britain in 1963.Early settlers in Kenya were Arabs, and then Portuguese, before it later became a British Crown colony in 1920. Kenya shares its border with Somalia in the East, Ethiopia in the North, Tanzania to the South, Uganda to the West, South Sudan to the North East, Lake Victoria to the South West and the Indian Ocean in parts of South East. In Kenya the Legal system is a mixture of English Common law, Islamic law and customary laws. The Supreme Court is the highest court in Kenya and it consists of the Chief Justice, Deputy Chief Justice and five judges. In Kenya, there are three separate functions that form the government, as outlined below:
Kenya has a common law tradition, which they inherited from the British as a result of colonial rule. In Kenya, English is the official language and the laws of the country are a mixture of English common law, Islamic law and traditional laws, the Constitution, Acts of Parliament, Specific Acts of Parliament of the United Kingdom, African Customary Law, Certain Acts of Parliament of India.The 2010 Constitution of Kenya Chapter 10, Art. 159 established the judiciary as an independent judicial authority, Art 163 established the Supreme Court, Art. 164 established the Appeal court, Art. 165 established the High court and Art. 169 established all subordinate courts. Kenya has a unitary system of government with the President as the Head of State and the Commander in Chief of the Armed Forces.
2.3 PURPOSE OF THE RESEARCH
The purpose of this study is to assess the following:
- Critically assess measures that have been adopted by the governments of Ghana and Kenya to address corruption in public procurement. Weaknesses identified in this piece of work will help the governments of Ghana and Kenya to strengthen relevant institutions to reduce corruption in public procurement. The research will identify areas of common ground and differences in Anti-Corruption measures adopted by the two countries and critically analyze the best option to effectively tackle corruption in public sector procurement.
- What lessons Kenya can learn from Ghana anti corruption laws and institutions in the fight against corruption in public sector procurement.
- The study will also be relevant to other developing countries to adopt these measures to strengthen anti-corruption laws and institutions.
- Multilateral organizations like the World Bank and other Donors who give grants and loans for development projects in developing countries will find this piece of work relevant to review procurement policies, procedures and processes.
2.4 RESEARCH QUESTION
The researcher will critically assess and compare the measures that have been put in place by the governments of Ghana and Kenya to address corruption in public procurement. By comparison, the paper will highlight the approaches adopted by these countries and examine the commonalities in relation to anti-corruption measures. Although a lot of research has been done on the subject of corruption in public procurement in Africa Exploring Corruption Practices in Public Procurement in Infrastructural Projects in Ghana and Corruption in Public Procurement Process in Kenya)  a critical examination of anti-corruption measures in Ghana and Kenya there was none. The study will therefore answer the following research question:
Do anti-corruption laws in Ghana and Kenya help to reduce corruption in public procurement? In other words, do anti-corruption laws in Ghana and Kenya critically address all corruption issues in public procurement?
While Ghana is in West Africa, Kenya is in the eastern part of the African continent. There are commonalities that provide a common ground for comparative research. Firstly, English is the official language spoken by the people of Ghana and Kenya. This is due to a long history of British Colonial rule. Both countries have numerous local dialects but English is the main language for business. Secondly, Both Ghana and Kenya lie in sub-Saharan Africa and are in the category of countries described by TI (CPI) to be among the world’s most corrupt nations Table 1 above. Ghana though performed better than Kenya in the past five years it is still below international standard. Thirdly, the legal system of Ghana and Kenya are similar, these countries have common law as a tradition, which they inherited from the British. Finally, both Ghana and Kenya operate in the same political, economic and social context.
The aim of the comparative research is to critically assess the measures adopted by the government of Ghana and Kenya to address corruption in public procurement; this will help the government of Kenya to improve its performance. Comparative research helps to identify and solve a problem (s) by comparing two or more legal systems and exploring differences and similarities.The paper will critically examine the following; Provisions in the 1992 Constitution of the Republic of Ghana to address corruption in Public Procurement and Provisions in the 2010 Constitution of Kenya to address corruption in public procurement. The paper will also compare two major laws enacted in Ghana and Kenya that underpin public procurement; Kenya Public Procurement and Disposal Act 2005, (PPDA) and Ghana Public Procurement Act 2003 (PPA 663). Ghana’s Public Procurement Authority (PPA) and Kenya’s Public Procurement Oversight Authority (PPOA) will also be examined. Other Anti-Corruption institutions will also be examined.
By comparing anti-corruption laws and institutions, similarities and differences will be identified. The subject matter entails a micro-comparative analysis as it focuses on the content of each legal system and its operation. Each Act contains several documents to compare and analyze for thorough review. Comparative research involves the following; what is to be researched, description and analysis of the documents.  To select which legal system to compare, Nelken pointed out that it is easier to compare legal systems that are similar and face similar challenges. Comparative research method will therefore be used to address the differences and similarities in anti-corruption measures between Kenya and Ghana. It is an opportunity for Kenya to learn from Ghana to strengthen its anti-corruption institutions and agencies because Ghana has consistently scored better than Kenya for the past five years as shown in Table one above. In comparative research, it is stated that “incomparables cannot be usefully compared and in law the things which are comparable are those that fulfill the same function” Similarities between Ghana and Kenya include common Law tradition, English language and high level corruption as has already been highlighted. Micro-comparative approach will be used to compare content of the legal system and institutions that serve the same function in these two countries.
The researcher will also supplement the above by using Internet search engine, journals, books, and circulars published by the governments of Ghana and Kenya on the subject.
2.6 LIMITATIONS AND BENEFITS
In spite of the benefits of comparative research, researchers like Otto Kaln-Freund have cautioned transfer between two legal systems. Countries all over the world operate under different cultural, economic and political contexts. The question is whether the measures adopted by the Kenyan government will fit into Ghana’s legal system. Another question one may ask is, should lessons learnt from one country be transferred wholly or in part? Otto Kaln-Freund used “Kidneys and Carburettors” to address the problem of transferability of legal systems between countries. While Carburettors are easy to transfer, Kidneys are not easily transferable at the time of his writing in 1974. It means that legal system that has worked perfectly in one nation may not work the same way in another country. Ghana’s economy, culture and political situation may be different from Kenya’s, hence the caution. In Africa for example where most countries have not embraced democracy as a system of government, transferring a legal system from a democratic nation to an undemocratic one may not work the same way. Other militating factors against transfer of legal systems between nations are; the presence of pressure groups likes trade unions, religious groups, and size of the economy. While the researcher is familiar with procurement laws and practices in Ghana because he grew up and practiced procurement in Ghana in the private and public sectors giving him more knowledge and understanding, he is not familiar with Kenyan laws and procurement practices. Information about Kenya is theoretical and from friends in procurement, and may therefore be biased, however, the researcher does not think differences in procurement practices between the two countries are too great to make it impracticable for them to learn from each other. The researcher could not cover every aspect of the topic in this piece of work due to time and cost constraints and availability of secondary materials. However, it is hoped this research will lay a foundation for future studies into this field. Given the differences in the two countries, there would be the need for further studies to compare other institutions that were established by the governments of Ghana and Kenya to curb corruption in public procurement.
3.1 ORIGIN OF CORRUPTION
The problem with corruption is that it has been in existence for centuries, and it is therefore difficult to point out how it originated. Corruption has roots in every sector of human life because of how long it has been in existence. Corruption pervades every sector of national economy, including the police, army, educational sector, charity organizations, religious bodies, health institutions, judiciary and even among traditional rulers. In it’s simplest form, corruption can be found in every human establishment. In this piece of work, the focus will be on corruption in public procurement. Corruption is old, and no one can trace its origin even though it is a common term used everyday. It is believed that the origin of corruption is around 3000 B. C. the second oldest practice that follows prostitution. The former President of Ghana John Agyekum Kuffour was quoted as saying “Corruption is as old as Adam” This statement by the president was seen by many as a sign of frustration in the fight against corruption. President John Agyekum Kuffour came to power and declared “ Zero tolerance for Corruption”.  He was applauded and people thought he had come as a savior to get the nation out from the grip of corruption. Tracing corruption to the time of Adam was seen by many as a sign of defeat and failure to deliver on his campaign promise to tackle corruption. As stated at the introduction, the President came to power and declared “Zero tolerance for Corruption” as a slogan. In contrast to popular opinion on the statement above, the president later defended his statement that it wasn’t an endorsement of corruption but rather he was pointing to the origin of corruption so that appropriate measures could be adopted to curb it. It is believed that corruption dates back to the year 3000 B.C. According to Bardhan, corruption existed as far back as the fourth century B.C. in India. Kautiliya writes in his Arthasastra “ Just as it is impossible not to taste the honey (or the poison) that finds itself in the tip of the tongue, so it is impossible for a government servant not to eat up at least a bit of the government revenue Just as a fish moving under water cannot possibly be found out either as drinking or not drinking water, so servants employed in government work cannot be found out while taking money for themselves”. This quote tells us how ancient corruption has been with the human race, and how it has always been with us and passed on from generation to generation-in different forms.
3.2 DEFINITION OF CORRUPTION
In view of the ancient nature of corruption, it makes corruption very difficult to define as it permeates every aspect of society. Another reason why corruption is difficult to define is because of moral and cultural issues. What is accepted as a normal practice in one culture or nation is frowned upon in another country. Notwithstanding all the difficulties to arrive at a generally accepted definition of corruption, there has been some definitions on the subject by Multilateral organizations and authors to provide grounds for its disapproval by organizations and the general public. Below are a few of the definitions I have captured for this paper. Corruption covers a number of crimes ranging from bribery, extortion, embezzlement, theft, all types of fraud, collusion, bid rigging, nepotism, patronage, political corruption, facilitation payments, and conflict of interest. Bribery occurs when a public official receives payment before a decision is made to influence his decision to the advantage of the giver. Bribery is a criminal offence in many countries, and many international laws have been passed under various conventions to criminalize it. In UK for instance, the United Kingdom Bribery Act 2010 gives broad definitions of what constitutes a bribe. In most countries where corruption is high like the developing world, bribery is not always paid in cash. It can be a trip abroad with families, offering an individual or friends with jobs, sexual favours or anything beneficial can be offered as bribe. An example of international conventions on bribery is the OECD Convention on Combating Bribery of Public Officials in International Business Transactions.  There have been many allegations of public officials who collect bribes from foreign companies before they are allowed to invest in the country and most of them are government officials. The question one may ask is how many government officials or foreign officials have been prosecuted using this convention. Corruption scandals involved foreign companies where bribes are paid directly or indirectly to politicians and high-ranking government officials, a form of corruption network. It can be argued that legislation and being signatories to international conventions are good but if it lacks implementation or prosecution powers then it becomes a “toothless” lion. Artticle 1 of the UN convention states that “Each party shall take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business” 
Another common form of fraud is extortion, this is when one uses his or her position either through threats or force to gain money, information or some form of benefit. Embezzlement is also a form of theft. It covers stealing state funds and all fraudulent enrichment by individuals of state funds. Over the years there have been many reports in the media both local and international of African leaders who embezzle state funds and keep them in Swiss banks.In Kenya for example civil society and pressure groups are calling the government to ban all public officials from government contracts..The newly elected US President Donald Trump tweeted, “ Every penny of the 7biillion dollars going to Africa as per Obama will be stolen – corruption is rampant”.Nepotism is another form of fraud where individuals especially government officials show favoritism to friends and families, thus making sure that government contracts are awarded to families and close friends.
There is no consensus on what constitutes corruption; the word means different things to different people and different cultures. A few definitions captured for this study are listed below: Transparency International (TI) defines corruption as “the misuse of entrusted power for private gain”. The World Bank defines corruption as “ the abuse of public office for private gain”.These definitions point to the fact that an individual who, having been entrusted with position either in government or within an organization misuses that position for his own benefit or family and friends is corrupt. Even though there is no single definition of corruption, the above definitions point to wrong doing by individual for private benefit. The agency model by N. Groenendijk used the economic theory of Principal and Agent relationship to throw more light on the meaning from procurement context. The government as the principal appoints the agent who is the procurement officer to act on behalf of the principal. The agent, though employed by the principal to seek his interest, may also have his own personal interest. The agent also holds information which the principal doesn’t have; corruption occurs when the agent uses his discretion and information at his disposal for his personal benefit. In many cases, this vast information coupled with large discretion in the hands of the agent is to help the agent make decisions to manage public funds through procurement, but the agent rather uses it for his personal gain. In mathematical terms, Klitgaad puts it in a formula: C=M+D-A, where Corruption (C) equals M (Monopoly) plus D (Discretion) minus A (Accountability). It can therefore be argued from the above formula that most corruption cases occur as a result of too much information in the hands of public sector procurement officers coupled with unchecked discretion. In procurement, there are many ways procurement officers can manipulate competitive tendering for their own benefit making it difficult or impossible for for the most competitive bidder to lose the contract.
It is important also to define public procurement, which is now highly recognized as a profession and a strategic function that contributes towards profitability in many organizations. In spite of its significant role in managing organizations resources it is also a common ground for corruption. It is a term used to describe the acquisition of goods, works and services by government institutions in a country and it encompasses purchases or contracts made by the government with the private sector. Examples include procurement by central and local government, institutions, military, government agencies and departments. It ranges from huge expenditure like construction of dams, construction of motorways and military artillery to stationery acquisition. The huge expenditure involved in the acquisition of goods and services and works for the government makes this sector vulnerable to corruption. In both Ghana and Kenya there has been reported cases of huge corruption scandals by government officials, some of which were cited at the beginning of this paper. In simple terms the larger the expenditure, the larger would be the amount of abuse when corruption occurs.
In this piece of work, the focus will be on corruption in the public sector procurement, not private sector corruption. Even though they are all not morally right, the paper cannot cover corruption in the private sector. There are similarities between public sector and private procurement. The same fundamental principles that are applied in private sector procurement also apply to the public sector. Both provide remedies when the contract is breached, and the basic elements of a binding contract – legality, capacity, offer and acceptance, consideration, formality and intention to create legal relations – apply in both cases. In addition, the five “rights” also apply in both private and public sector procurement. These rights are; goods and services which are of the right quantity, the right quality, the right price, the right time and from the right source . In spite of the similarities mentioned above, it’s important also to point out the differences between private sector and public sector procurement. Firstly, the size of expenditure involved in public procurement is huge. Due to its magnitude, it makes this sector vulnerable to all forms of corruption. In Kenya it is estimated that the size of public procurement is about 11% of Gross Domestic Product (GDP) according to Kenya Economic Survey quoted by Quinot. In Ghana, it’s even higher; Dagbanja puts the size of Ghana’s public procurement market at 14% of GDP.The magnitude of government purchases without adequate regulations has made public procurement susceptible to corruption in Ghana and Kenya. Weak legal and financial institutions are some of the factors that has contributed to corruption in many countries in Africa. Secondly, the duration of procurement processes in these two countries is so long that many complain that procurement in the public sector is bureaucratic. Procurement Officers in the public sector take a long time to complete a contract due to regulations to be followed compared to their counterparts in the private sector. In contrast to this assertion, procurement officers in the public sector assert that they are stewards of public trust and therefore have to follow regulations to make sure they obtain value for every cedi or shilling spent. Thirdly, government procurement is also governed by rules and regulations, which may not be followed in the private sector. As stewards of public funds, the government promulgates rules and regulations to be followed by the public sector while delivering value. These numerous rules make the public sector buyer less flexible in executing his duties than their counterparts in the private sector. This has led many to believe that procurement in the private sector is always straightforward. Fourthly, the source of funding for the government is from taxes, loans and grants whereas the private sector raises funds through private capital and personal loans. It is stated, “In the public sector, value delivery is contested whereas in the private sector, value appropriation is uncontested “. This implies that ‘value delivery ‘is the main goal in both private and the public sector but in the public sector, there is a whole range of issues to be satisfied before value is delivered. The public eye is on government procurement due to the source of funding. Every citizen of the nation is interested to know how the taxpayers’ money is spent. Some of the interest groups are the media, journalist, lawyers and international donors. Due to the public attention, the government becomes morally obliged to enact laws, rules and regulations to ensure public funds are expended judiciously. This puts officials in charge of government procurement under public scrutiny and accountable for all their actions. The government ensures accounts are kept properly and audited annually. It is therefore said that government buyer is subject to public censure; the process from initial request through tendering, contract award to execution has to be conducted in an open, fair, transparent and non-discriminatory manner. In contrast, the private entrepreneur keeps his specifications, prices and tendering secret because of competition. Finally, governments all over the world continue to use procurement process to accomplish its Socio-economic Policies. The term ‘Socio-Economic Policies’ has been defined as “any purposeful action intended to improve the social Welfare of the whole or part of the same population”. This includes rules requiring government contracts to be awarded to disadvantaged groups and businesses in the society to promote government objectives. These objectives are economic, environmental and social. These policies can be political, economic, social or industrial and the aim is to improve the welfare of a region or a disadvantaged group in that region or society. In Kenya, section 39 of the Public Procurement Act empowers the Minister for Finance to allocate government contract to disadvantaged groups, regions and small enterprises. When government decides to pursue socio-economic policies, this will involve some trade-offs with other objectives. For example, in implementing a government policy to award government contract to firms in a particular region, this may be done at the expense of other objectives like value for money and foreign supplier participation. It is important therefore to balance implementation of horizontal policies with other objectives.
Addressing the issue of corruption in Public procurement, it is important also to mention some objectives of public procurement and how these objectives relate. Depending on the author, the objectives differ in order of hierarchy, for example some authors put value for money or efficiency in government procurement as the most important objective. Others may put integrity as the topmost objective. There are eight objectives in public procurement these are; (I & viii) Value for money also referred to as efficiency, this is efficiency and effectiveness of a product or service or obtaining maximum use of a product. (ii) Integrity means confidence and reliability in the people in charge of procurement and the procurement process. (iii) Accountability means procurement professionals must take full responsibility for their decisions and actions, ready to report to the appropriate authority (iv, v) Equal opportunity and Fair treatment of suppliers, this also means no preferential treatment from the start of procurement process to contract execution stage. All suppliers are given the same opportunity. These are two separate objectives according to the writer but sometimes they are treated as one. (vi) Promotion of socio-economic policies thus the government using procurement to promote social, economic and environmental objectives. (vii) International trade, that is making government contract accessible to foreign suppliers. In order of hierarchy, value for money or efficiency appears to be the most important objective in public procurement in most countries across Africa. The reason is that most procurement systems in Africa were fashioned according to the 1994 UNCITRAL Model Law. Value for money means ensuring that there is ‘value for every pound spent’ of the taxpayer’s money. In public procurement, value for money can be achieved by through competitive tendering before government contracts are awarded to the best supplier. Dekel on the other hand, ranked integrity as the topmost objective, followed by efficiency and equal opportunity. Integrity in government procurement is to avoid a situation where contracts are awarded based on conflict of interest, favoritism, or bribes. Generally, procurement contract award based on bribes comes with a high cost to the government in the form of sub-standard goods, services, works or poor terms. For example during the tendering process when a supplier pays the highest bribe and he is awarded the contract, in order to recoup the bribe paid and gain profit, he may supply cheap and/or sub-standard products. In this case cheap products of poor quality may be obtained instead of high quality but expensive products. Comparing different authors on the subject, value for money or economic efficiency is always mentioned as one the top three key objectives. This may be due to the fact that most public procurement regimes in Africa are based on the 1994 UNCITRAL Model Law in which value for money, described as maximizing economy, is in the preamble of the Model Law. The aim of the Model law is to standardize procedures in public procurement to achieve economic efficiency. In terms of hierarchy therefore, there is no consensus as to which objective should be put on top of the ladder, and as a result, some writers see some objectives as subservient to others. Sometimes these objectives are in conflict with each other and a compromise will have to be made to achieve the other. Assuming for example, during tendering, a tenderer submits a bid late, without signature, and key information missing from the tender document. The contracting officer will have to decide whether to allow the supplier to correct the omissions in order to achieve value for money because that is the best offer. When the contracting officer decides to overlook these blunders to accept the offer, this will contravene the principle of equal treatment, which is one of the fundamental principles of public procurement. Rejecting the offer means the principle of equal treatment of suppliers has been satisfied at the expense of value for money. Balancing these objectives is important, thus ‘sacrificing’ one objective to achieve the other. In some instances, these same objectives complement each other. Thus, pursuing one objective leads to the fulfillment of other goals. For instance, in a country where tenderers are treated equally, transparent and non-discriminatory, foreign suppliers will be attracted to bid for government contracts and this will boost international trade. Furthermore, given equal treatment to suppliers will support the achievement of value for money by following the principle of transparency, non-discriminatory and competitive tendering. In some of the developing world, the regulations are there but they lack enforceability, numerous institutions and agencies but they are all weak in terms of enforcing the law. It is estimated that the amount of money that is wasted through corruption in public procurement every year is between $390-400 billion all over the world.According to World Bank report over US$ 1000 billion is paid in bribes every year.  This is a huge amount that can tackle major challenges facing the world today like conflicts, droughts, HIV and other epidemics globally. Corruption in public procurement has so many detrimental effects on a nation. It can impede economic development and disastrous to national development especially in developing countries like Ghana and Kenya where government budgets are low. Corruption in public procurement can be varied and complex ranging from bid suppression where tenderers agree not to submit a tender so that the designated winning competitor’s bid will be accepted, to complementary bidding where tenderers collude to submit tenders that are either too high to be accepted or contain special terms that will not be acceptable to the procuring entity. It also includes bid rotation, where tenderers all collude to submit bids but take turns being the low bidder. At procurement planning and budgeting stage, the procuring entity needs to know its requirement and how much it would like to spend in the budget. There are opportunities for corruption in determining the requirement. The procurement requirements could be written to favour a particular supplier or contractor. Procurement Officers can set budgets so high so that the excess will go to their benefit. At invitation to tender stage, the main procurement tasks at this stage are tender documentation and conducting an evaluation and awarding the contract. At this stage, the evaluation criteria and the request for proposals or tender documents could be drafted to favour a particular supplier. It is also a common practice among corrupt procurement officers to provide advance and confidential information to favorite tenderers. The contract award and contract management stage is another phase of the procurement process where corruption can occur. A tenderer can offer a lower bid so that after the contract is awarded he will go back and see Procurement Officers for price upward price adjustment. On the other way r
ound, a tenderer could offer high quality products, upon contract award, substitute inferior products. Another form of corruption is where government officials and politicians get involved and insist or require that sub-contract should be given to a particular supplier. Sometimes in procurement after tender evaluation, contract award documents differ from the terms of the original tender documents with specification, quantity, or delivery schedule. These are some of the ways corrupt procurement officers can circumvent the procurement process to their own advantage.
In spite of all the harmful effect of corruption mentioned above, some scholars have argued the good side of corruption is that corruption facilitates trade and voluntary exchange. Some also argue, “that bribery can enhance efficiency, “grease–the-wheels”, and supplement income. In some countries with bureaucracy and sluggish economy, bribery is the only way to get things done. Others argue that in developing economies where workers’ wages are low, bribery serves as income supplement, in other words, they are able to make earns meet by supplementing low wages with bribes.The argument further states that in some societies or countries transactions or documentations in the public sector are delayed and bribery is the only way to get things done quicker. What the above arguments fail to capture is that corruption is theft of public resources, unethical and morally wrong. In procurement, low quality products and services are supplied due to corruption. The World Bank has estimated that roughly $1.5 trillion in public contract awards are influenced by corruption, and that the volume of bribes exchanging hands for public sector procurement alone, is estimated to about US$ 200 billion per year.  When state resources are used efficiently and judiciously in the acquisition of goods and services this could lead to value for money in government expenditure. In procurement, it is generally believed that where expenditure is great, employing procurement tools and mechanisms can make great savings.Therefore, efficiency in public procurement will go a long way to generate savings that the government can invest in other sectors of the economy. Procurement research has also indicated that, where expenditure is great, greater savings can be made by employing effective procurement mechanism in acquiring goods and services for the nation. For instance, if the government of Ghana or Kenya spends £2billoin every year to acquire goods and services and by the use of efficient and effective procurement techniques this expenditure is reduced by just 5%, the 5% reduction is an added revenue to the nation. This way, small savings in public procurement can be directed to develop poor sectors of the economy. Annual Corruption Perceptions Index (CPI) released by Transparency International in 2012 revealed that Ghana and Kenya are among the worlds most corrupt nations. Corruption is a global problem prevalent in all societies, affecting both developed and developing nations. It is estimated that the amount of money that is wasted through corruption in public procurement every year is between $390-400 billion all over the world.In Africa, public procurement corruption is estimated at around $148 billion a year. This is a huge amount compared to billions of dollars in aid and grants the donor community sent to Africa for development. Reducing corruption will enhance the confidence of donor community and provide a better picture of the Continent.One major reason why public procurement in particular is susceptible to corruption is because of the huge amount of government expenditure in acquisition of goods and services, with high discretion for procurement personnel to make decisions on behalf of the government. In procurement, corruption can occur at any stage of the procurement process example, procurement planning, preparing and processing of procurement requests, developing and reviewing requirements documents, planning for evaluation, contract award, preparation and signing of contract and contract management. There are six stages of the procurement process where corruption can occur; specification, supplier selection, contracting, ordering, expediting, and follow-up/evaluation. To reduce corruption, it is important to have clear regulations and transparent that will monitor each stage of the process. In public procurement, most corruption cases occur when laid down policies and procurement officers to award the contract ignore procedures.
3.3 INTERNATIONAL ORGANIZATIONS IN THE FIGHT AGAINST CORRUPTION
Due to the detrimental nature of corruption on the Global economy, there has been several international conventions and declarations in the fight against corruption. Both Ghana and Kenya are signatories to these conventions, which include: The United Nations Convention against Corruption (UNCAC), a major anti-corruption instrument for signatory countries. It is mandatory and legally binding for all parties. Ghana signed this convention on 9th December 2004 and ratified it on 27th June 2007. Kenya also signed and ratified it in the same year, 9th December 2003. By ratifying these convention, it is expected that signatory countries will enact laws and put appropriate measures in place to fight corruption.
The 9th President of the World Bank (James Wolfensohn) likened corruption to cancer in his reference to “the cancer of corruption“in a speech in 1996 in which he announced that the Bank would revise rules and guidelines to guard against corruption for World Bank funded projects. He further stated that the Bank should “become an active partner in multilateral efforts to control corruption and international bribery”. He ended the speech by pledging that the Bank would team up with other multilateral organizations to fight corruption and encourage cooperation among countries in the fight against corruption. The organization for Economic Cooperation and Development (OECD) investment committee established the working Group on Bribery in international Business Transactions in May 1994. The OECD convention was the first and only internationally recognized anti corruption instrument that criminalizes bribery from the “supply side”. The convention sets standards to ensure foreign public officials who engage in bribery are criminalized. Countries who were signatories to the convention make a commitment to put measures that will help to prevent or detect bribery as well as sanction foreign public officials involved in bribery in international business transactions. Members were required to enact national laws to criminalize foreign public officials. Ghana became the 50th member of the OECD Development Centre on 6th October 2015.
At the World Trade Organization’s (WTO) ministerial meeting in Singapore in 1996, parties agreed to adopt transparent process in the award of government contracts. Since its establishment in 1995, the aim of the WTO has been to provide a forum for trade agreement, remove obstacles to trade and harmonize trade among nations. The organization has made significant contribution to address corruption in the world, and the impact can be seen in public procurement reform in many countries around the world.
On the African Continent, Kenya signed African Union (AU) Convention on Preventing and Combating Corruption in Africa on 17th December 2003 and ratified it on 3rd February 2007, Ghana signed the convention on 31st October 2003 and ratified it on 13th June 2007.Article 3 of the Convention states that signatory countries should undertake to abide by the following principles;
“Respect for democratic principles and institutions, popular participation, the rule of law and good governance.”  Corruption is one of the main issues that the convention aims to address on the continent, however for many years corruption is still a problem to Africa’s scarce resources. Public funds are appropriated scarce resources to fund infrastructure projects are diverted to benefit just a few of the population. 
3.4 ANTI-CORUPTION LAWS AND INSTITUTIONS IN KENYA
In Kenya, public procurement reform was largely influenced by multilateral organizations and the donor community like the World Bank to bring procurement to international standard like the 1994 UNCITRAL Model Law. The move for reform in Public Procurement in Kenya led to the enactment of regulations in 2001 and then later the Public Procurement and Disposal Act in 2005 (PPDA).Kenya is a member of the Common Market for Eastern and Southern African (COMESA) established in 1994. COMESA has played a key role by influencing public procurement reform in Kenya and other member states by pressurizing member states to adopt the 1994 UNCITRAL Model law.The aim of COMESA at that time was to push member nations to adopt regulations in public procurement for Competitive Bidding to allow Suppliers and Contractors from other member states to gain access to their market. A major change to public procurement regime in Kenya occurred when the Constitution of 2010 included public procurement giving the courts prosecutorial powers.By including public procurement in the Constitution gives public procurement parliamentary powers for the prosecution of anyone who is in breach of the Constitution of the Republic of Kenya. The fight against corruption was heightened when President Kibaki was elected as President in 2002 as stated at the introduction of the paper. He restored Kenya Anti-Corruption Commission (KACC) that makes it mandatory for politicians and civil servants to prove their source of income. This move by President Kibaki was hailed by many Kenyans who were worried about the level of corruption in the country as a fight to end corruption. He also introduced a number of reforms and enacted laws including the Public Procurement and Disposal Act (PPDA) 2005 to unify public procurement and make it more transparent. PPDA regulates all procurement, makes provision for procurement policy objectives, and provides procurement methods, procurement rules, challenge mechanism, compliance measures, debarment and criminalization of offenders. Under PPDA, suppliers have right to legally challenge any breach of procurement rules.The right to challenge procurement proceedings is reserved for suppliers who participated in the tender, any supplier who did not take part in the tender cannot challenge procurement proceedings. Suppliers can challenge procurement proceedings first to the review board. The Public Procurement Review Board hears complaints about violations of public procurement rules and investigate. One limitation of the board is that, it cannot award damages but it can provide the following remedies; halt procurement process, ask procurement entity to redo the tender, award trial cost and suspend proceedings. It is noteworthy that suppliers’ right of appeal can go up to the High Court.  PPDA under section 8, established the Public Procurement Oversight Authority (PPOA) to oversee all procurement in the public sector making it mandatory for all major procurement to go through competitive bidding process. The Act also created the Public Procurement Oversight Advisory Board as the main procurement administrative review board. Section 26 of the Procurement Act, makes provision for the establishment of a Tender Committee, Tender evaluation committee, inspection and acceptance committee.  PPOA is tasked to provide procurement policy objectives so that entities found guilty of procurement violations are debarred or prohibited from participating in future procurement tenders. Under Section 51 of PPDA members of the public, suppliers and procuring entities can request PPOA to conduct an investigation to find out whether procurement rules have been breached and recommend violations to Kenya Anti-Corruption Commission (KACC). PPOA is mandated by the Act and given the following responsibilities; Ensuring that organizations comply with procurement procedures established under the Act, monitoring procurement system and reporting on its overall functioning, initiating public procurement policy, assisting in the implementation and operation of smooth public procurement system, supporting training and professional development. PPOA being the main oversight authority for procurement investigates non-compliance and breaches and makes recommendations to Kenya Anti-Corruption Commission (KACC). The two organizations work together to enforce public procurement rules and prosecute. Under section 115 of the Act, PPDA empowers PPOA to investigate and debar suppliers who breach the contract. The Kenyan Anti-Corruption Commission was established under Kenya Anti-Corruption and Economic Crimes Act (2003) to assist PPOA to investigate suppliers and public office holders in breach of procurement rules. The 2010 constitution (Article 79) established Ethics and Anti-Corruption Commission (EACC) to replace former Anti-Corruption Commission with a clear mandate for prevention and public education on corruption issues.However, one limitation of EACC is that it does not have prosecutorial powers, it only investigates and makes recommendations to the appropriate authorities.Under “Coverage of Entities”, section 3 of PPDA prescribes entities covered by the Act. According to the Act (PPDA), all entities that procure goods, services and works for the government are covered.  In other words, any institution, entity, organization that uses public funds, aid, grant to acquire goods, services and works are covered by the Act a
nd must apply the regulations. Section 29 of the Act (PPDA) prescribes the following as procurement methods to use; open tendering, restricted tendering, direct procurement, request for quotations, and request for proposals. Open tendering is the default procurement method, this is because the Act (PPDA) was based on the 1994 UNCITRAL Model Law which set open tendering as the default procurement method.Notwithstanding the above, in 2007 only 37.8% of public entities used open tendering which is far below the OECD recommendation of 60%.Under the Act, other procurement methods can only be used under special circumstances. Section 54 provides advertisement of open tendering and request for proposals in a newspaper, which circulates nationwide, and an English newspaper that circulates internationally to attract more suppliers for competitive tendering. One weakness of the PPDA worth mentioning is that entities choice of procurement method cannot be challenged. Section 2 of the Kenyan Procurement Act states the purpose of the procurement policy as; ‘value for money, integrity, accountability to the public, open market for competition, support of economic and social objectives and efficiency’. The Public Officers Ethics Act 2003 requires parliamentarians and civil servant to declare their assets before taking public office. Two other Organizations at the frontline in the fight against corruption in Kenya are Kenya National Audit Office (KENOA) and Internal Auditor-General (IAG). KENOA’s responsibility as an external auditor covers annual procurement audit while IAG is responsible for internal auditing throughout the year.The 2010 Constitution also created two independent offices, the Auditor-General and the Controller of the Budget. The Ethics and Anti-Corruption Commission (EACC) is mandated to investigate corruption and economic crimes and make recommendation to the Attorney General for prosecution.
3.5 ANTI-CORUPTION LAWS AND INSTITUTIONS IN GHANA
Since Ghana gained independence in 1957, the government has passed laws, institutions and agencies have been created, and international conventions have been ratified in the fight against corruption. The 1992 Constitution lay the foundation for the fight against corruption. Article 35(8) of the 1992 Constitution states that: “The State shall take steps to eradicate corrupt practices and abuse of power”  This provision in the 1992 Constitution authorizes institutions to take measures, put policies and procedures in place to prevent corruption in all government establishments. Chapter 24 (Art. 284) of the1992 constitution also provides Code of Conduct for Public Officers, how public office holder are expected to conduct himself while in the service of the government. Thus, a Public Office holder must not be seen to have his personal interest in conflict with that of the public office he holding. Article 286 of Chapter 24 of the Constitution states, “a person who holds a public office must submit to the Auditor-General, a written declaration of all property or assets owned by, or liabilities owed by that person whether directly or indirectly within three months after taking office, at the end of every four years and at the end of the person’s term of office” These and many more are the provisions laid down in the 1992 Constitution of Ghana to reduce corruption in the public sector. Another important organization worth mentioning in the fight against corruption in the public sector is The Commission on Human Rights and Administrative Justice (CHRAJ) formed under The Commission on Human Rights and Administrative Justice Act, 1993.CHRAJ (Act 456) Section 7 of Act 456 laid down the functions of the Commission. One of its main function is to investigate alleged corruption by public office holders and report to the appropriate authority for possible prosecution, i.e., “to investigate instances of alleged or suspected corruption, and the misappropriation of public moneys by an official and to take appropriate steps, including reports to the Attorney- General and the Auditor-General, resulting from that investigation”. Since, its establishment, CHRAJ has investigated alleged corruption charges against many office holders including former President John Agyekum Kuffour.In this notable case, the former President John Agyekum Kuffour was invited to testify before the Commission on allegations that he used his office to guarantee a loan for his son to buy a prestigious hotel near his residence which amounted to conflict of interest. Even though there was no prosecution, it showed the independence of the Commission and sent a clear message to members of government that ‘no one is above the law’
The Ghana Anti-Corruption Coalition (GACC) is a cross-sectorial group of public, private and civil society organizations with a focus on promoting good governance and fighting corruption in Ghana. Among the objectives of GACC is to uphold honesty, transparency, accountability, integrity through capacity-building, research by engaging coalition members and other key stakeholders operating at the regional, national and international levels in the fight against public sector corruption. The Serious Fraud Office (SFO) Act, 1993 (Act 466), was established as government agency in the fight against corruption, especially in the public sector.One of its key functions is investigate suspected fraud offences that have cause financial or economic loss to the State. The Internal Audit Agency Act 658 (IAA), was passed in 2003 to co-ordinate, monitor, supervise and establish standards and procedures for conducting internal audit to secure transparency and avoid corruption.Chapter 24 of the 1992 Constitution established Public Office Holders Declaration of Assets and Disqualification Act 1998, (Act 553) All these laws, institutions and agencies were established on the basis of the 1992 constitution. Over the years, they have helped in many ways to prevent and to prosecute public officials alleged to be involved in corruption in Ghana.
The foundation and the primary source of all legal regimes in Ghana’s public procurement is the Public Procurement Act 2003, (Act 663). PPA (663) established the Public Procurement Authority (PPA), which makes administrative and institutional arrangements for procurement, and also stipulates tendering procedures. Thus, the Act deals with procurement structures, procurement rules, methods of procurement and tendering procedures. It also deals with submission of tenders and methods and procedures of engaging the services of consultants. Section 3 of PPA (663) provides the functions of the Authority.Under Section 2 of the Act, the authority is mandated to harmonize processes in public procurement to secure judicious, economic and efficient use of state resources and to ensure that public procurement is carried out fairly, and in a transparent and non- discriminatory manner. The Act covers acquisition of goods, services and works by all entities in the public sector. In accordance with the 1994 UNCITRAL Model law, PPA objectives are:
Firstly, value for money, efficiency or economic use of public funds, thus, making sure that there is value for every penny of the taxpayer’s money spent. Secondly, Fair and non-discriminatory in public sector procurement, ensuring fair and equal treatment of all suppliers. Thirdly, a requirement to ensure transparency in public sector procurement – it means information must be made available to all participants during procurement or tendering process. Fourthly, public procurement is used to promote government socio-economic policies (Section 3 of PPA (663) supports local businesses to be efficient to bid for government contracts.
The Act also established various committees under PPA such as; Tender Committee, Tender evaluation Panel and Tender Review Board. The Tender Committee is to ensure compliance throughout the procurement process while the Tender Review Committee reviews each tender process. The Tender Evaluation Panel is constituted each time there is tender to evaluate and make recommendation for award of contract. PPA is the main administrative review body in Ghana; it has power to reverse decision, stop procurement proceedings and order supplier to be paid compensation cost. To make a complaint, a supplier is required to make complaint to the relevant entity first, if the supplier is not happy with the decision he can go further to PPA for administrative review. Rights and remedies are available to aggrieved suppliers who participated in the tender only. Just like Kenya, the procurement methods prescribed by the Act below are a model of the 1994 UNCITRAL Law. Open tendering is the default method, two-staged tendering, restricted tendering, single source procurement and request for quotations. Apart from these methods, the Minister of Finance is empowered by the Act to prescribe other methods to be used when deemed necessary, i.e. when it is in the interest of the nation.Section 47 of the Act prescribes publication of tender notices, it has to be published in Public Procurement Bulletin and two news papers of nationwide circulation. In addition, it has to be published in international newspapers or professional journals of international circulation and finally be available at the PPA website. The PPA (663) covers all government establishments, institutions and entities that use public funds to acquire goods, services and works.
MAJOR FINDINGS AND RECOMMENDATIONS
Since independence from Great Britain, there have been several laws passed, and institutions and agencies created by the governments of Ghana and Kenya in an effort to reduce corruption in public sector.
It has been established in this paper that numerous anti-corruption laws, institutions and agencies in Ghana and Kenya have produced some results but not up to international standard, this could be attributed to the following factors. This is followed by recommendations:
- There is very little or no correlation between anti-corruption agencies and
establishments – most of these anti-corruption establishments operate independently making it very difficult to achieve intended results. To be effective, all these institutions, agencies and laws must work together. All the organizations must ‘talk to each other’ in the fight against corruption in Public Procurement. It is therefore recommended that there should be an institution or an agency to coordinate the activities of these institutions in Ghana and Kenya.
- Duplication of work in most of institutions established to fight corruption in Ghana
and Kenya – looking at the role of some of the establishments and institutions they are all mandated to perform the same function. There is the need for clear line of responsibilities. In Kenya for example there is duplication of work in the functions of Kenya National Audit Office (KENOA) and Public Procurement Oversight Authority (PPOA). KENOA conducts procurement Audit while the Public Procurement and Disposal Act also mandates PPOA to inspect and audit procurement contracts. There is always a gap as no organization is ready to take full responsibility. This may lead to ‘no work done’ as PPOA may think procurement audit is KENOA’s responsibility and vice-versa.
- Lack of clear-cut public procurement procedures – in Kenya’s PPDA, there is no
clearly defined procedure to guide tenderers in the use of technical qualification during tendering.Under Ghana’s Public procurement Act (663), there are no clearly defined procedures to deal with emergency procurement. Ghana’s public procurement Act provided procedures for different types of procurement, but did not provide procedures for emergency procurement. Leaving emergency procurement to the discretion of procurement officers can open the door for corruption.
- Lack of public education on corruption and its harmful effect. Public should be
educated to frown at corruption irrespective of who or where it is committed – in Africa and most developing countries, there is a culture to “overlook” or accept bribes as part of the culture. In other words, some corrupt practices, which the western world will not accept is committed, and perpetrators go free. Public education about the detrimental effect of corruption on the nation and individuals is necessary. The government of Ghana and Kenya must make more concerted effort to educate the public about bribery and all forms of corruption through the media and other network that it is a criminal offence. The public should be aware of the effect of corruption in public procurement and the punishment for perpetrators when they are caught.
- It is also recommended that Ghana and Kenya introduce electronic procurement
Electronic procurement reduces transactional cost, improves transparency and accountability. It is hoped that a statement made by Ghana’s Vice-President to introduce e-procurement will happen soon.
- Capacity building is important to enhance
effectiveness of the procurement function it is recommended that there should be a national policy in Ghana and Kenya to ensure that those in-charge of procurement are fully trained to ensure professionalism, which will go a long way to reduce corruption. Qualified procurement professionals know the conduct and ethics of the profession, they know professional membership may be lost if they indulge in corrupt practices. In Africa and some developing countries where there is shortage of procurement professionals, people have a notion that procurement is buying….and ‘anybody’ can buy. Instead of training procurement professionals, they employ non-procurement professionals and put them in-charge of procurement, which is another doorway for corruption. Regular training for procurement professionals is important in order to reduce corruption.
- Strengthening existing institutions by making resources available – as seen from this
piece of work, there are numerous institutions, agencies, laws etc., in Ghana and Kenya in the fight against corruption, yet corruption in procurement is on the increase. One reason may be inadequacy of resources. Without funding and trained professionals the institutions will be toothless. Institutions need Lawyers, Procurement Professionals, Accountants and other professionals as well as timely funding to be effective.
- Lack of political will to tackle corruption especially in public sector procurement. One
major problem that has undermined the legitimacy of most governments in Africa is the lack of political will to tackle corruption in public sector procurement. The introduction of this paper highlighted recent corruption scandals in Ghana and Kenya. There is little evidence of a strong political will on the part of the governments to effectively bring perpetrators of this crime to book. Political will is about government’s commitment to fight corruption. Corruption must be fought up-bottom not bottom-up, in other words integrity and house cleaning must start from the top. As mentioned above Ghana performed better in the TI, CPI report consistently for five years, this can be attributed to independence of anti-corruption laws and strong commitment by the Ghana government to fight corruption from the top. This can be a great lesson for the government of Kenya. In Ghana for example, former President J.A. Kuffour appeared before CHIRAJ to answer alleged corruption charges. It was alleged that the President used his position to guarantee a loan for his Son to buy a hotel that amounts to conflict of interest. This is an indication of independence anti-corruption institutions and government’s commitment to tackle corruption from the top.
- It is recommended both Ghana and Kenya should adopt international best practice in
the fight against Corruption in public procurement. These best practices are tools used by developed countries in the fight against corruption in public procurement. Some of these tools have been mentioned in the recommendations above. However, it is worth adding the following. Preventive, Detection and Sanctioning mechanisms that have proof effective for many years in the fight against corruption in Public procurement. These measures include; Declaration of Assets by public office holders, Code of Ethics, Regular Audits of procurement, civil society participation in the fight against corruption, public education and campaigning, Integrity Pacts – Integrity Pact is an agreement between the buying organization and all suppliers in tendering. There is an obligation on the part of each party to neither give nor accept bribes, violation of the pact leads to sanctioning prescribed in the pact. The United Nations Convention against Corruption (UNCAC)Article 6 provides that; Effective policy implementation to ensure transparency, accountability, integrity and public participation, independence of anti-corruption institutions, adequate resources, training, an institution in-charge of public procurement. The institution should have prosecutorial powers, collaborate with other anti-corruption institutions and should be given a clear mandate raise public awareness in the fight against corruption. Other measures may include; supplier debarment, publishing names of corrupt officials in the media, fines and imprisonment, asset recovery or freezing the assets of corrupt officials as a deterrent. A strong commitment by the government of Kenya to enforce the law through prevention, detection and sanctioning are critical in the fight against corruption in public procurement.
This paper compared anti-corruption laws, institutions between Ghana and Kenya. It is revealed that there are commonalities between Ghana anti-corruption law and institutions and Kenya. Ghana enacted Public Procurement Act in 2003 and then established Public Procurement Authority. Kenya’s Public Procurement and Disposal Act PPDA) was passed in 2005 and then established Public Procurement Oversight Authority (PPOA). It is seen that both Ghana and Kenya enacted other laws and established anti-corruption institutions to curb corruption. It is also seen that most corruption in Ghana and Kenya is in the area of Public Procurement because of huge expenditure involved. It is seen that both Ghana and Kenya are on the list of the World’s most corrupt nations according to TI CPI score (Table 1) above. The report showed Ghana and Kenya with a scored below 50 from 2012 to 2016, which is below international standard. TI, CPI report also reveals that Ghana performed better than Kenya in the past five year (Table 1) above. The government of Kenya can therefore learn Ghana’s anti-corruption laws to strengthen anti-corruption institutions in the country.
Notwithstanding TI, CPI report cited above, one could say good progress has been made by Ghana and Kenya to raise the standard of procurement to international standards compared to other nations in the sub-region. Some of the achievements are, coverage of entities by the Public Procurement Act of Ghana and Kenya including military procurement and decentralization of procurement. Open tendering is the default procurement method in Ghana and Kenya. There are enforceable provisions in the procurement Act of the two countries. There are provisions in the procurement Acts that have strengthened the structure of PPA and PPDA in Ghana and Kenya respectively. Other commendable anti-corruption measures are the enactment of Public Procurement Acts in Ghana and Kenya and the establishment of institutions and agencies to tackle corruption in the public sector. In Ghana’s 1992 Constitution as well as Kenya’s 2010 Constitution, there are provisions in the constitution to enforce violations in public procurement especially corruption. The 1992 Constitution of Ghana made provision for the establishment of Public Procurement Act to harmonize procurement in the public sector. The study identified some setbacks worth mentioning. Ghana’s PPA (663) did not make provision for emergency procurement, which means procurement professionals will use their discretion in emergency situations. Also, there is no national portal to advertise procurement in Ghana and Kenya, for instance, in Ghana, the PPA advertise tender awards on their website. There is no electronic procurement in Ghana and Kenya.
Having reviewed Ghana’ Public Procurement Act 2003 (663), Kenya’s Public Procurement and Disposal Act 2005 (PPDA), Ghana’s Public Procurement Authority (PPA), Kenya’s Public Procurement and Disposal Authority (PPOA) and other anti-corruption institutions in the two countries, it can be concluded that good progress has been made towards modernization of public procurement and operating to international standards in the area of procurement. There are enforceable provisions in the 1992 Constitution of Ghana and the 2010 Constitution of Kenya the led to the establishment of PPA (663) and PPDA 2005. As stated above, the World Bank and major trading blocks in the regions all influenced public procurement modernization in Ghana and Kenya. In terms of Africa or looking at it from African perspective, one can say great progress has been made towards procurement reforms and regulations compared to many countries in the sub-region.
Notwithstanding all the anti-corruption measures introduced by the government of Ghana and Kenya in the fight against corruption in public sector procurement, it can be argued that there is still room for improvement. The paper identified a number of limitations to the efficiency of anti-corruption laws and institutions in Ghana and Kenya, which include lack of political will, inadequate procurement professionals, and duplication of duties between anti-corruption institutions. To win the battle against corruption, it must start at the top. There should be strong commitment by the governments of Ghana and Kenya to back their words with actions to deter, detect and prosecute all who will be caught indulging in corrupt practices in public sector procurement.
- 1992 Constitution of the Republic of Ghana Chapter 24 (Art.284)
- 1992 Constitution of the Republic of Ghana Chapter 24 (Art.286)
- 1992 Constitution of the Republic of Ghana Art. 35 (8)
- 2010 Constitution of the republic of Kenya Art. 159,163,164,165,169
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