This archive report was first published on 4 August 2020.
On July 9, Treasury Cabinet Secretary Ukur Yatani gazetted the Public Procurement and Asset Disposal Regulations (2020), which were passed by the National Assembly on July 2. The regulations aimed to make it expensive for individuals to challenge government contracts.
However, the move has been put on hold by the High Court following a petition by the Roads and Civil Engineering Contractors Association and the Energy Sector Contractors Association. The associations claimed that the new rules will entrench corruption by denying the public a chance to challenge fraudulent contracts.
According to the regulations, any person challenging a government tender at the Public Procurement and Administrative Review Board (PPARB) must deposit 15 per cent of the total contract sum. If the individual is dissatisfied with the PPARB decision and wants to challenge the tender at the High Court, they must deposit another three per cent of the contract tender sum.
For example, if anyone wants to challenge the Sh62 billion Nairobi Expressway contract, they must first deposit Sh9.3 billion before the case is heard.
Justice Weldon Korir suspended the regulations pending the hearing and determination of the suit. The court ruled that the provisions of the regulations are unconstitutional and meant to deny and limit any person's right to affordable access to justice and right to fair hearing.
The associations argued that if the law is not overturned, procurement laws will be flouted by government operatives with impunity, resulting in enormous loss of public funds through inflated tenders and corruption.
