1 For the proposed bill, please see Republic of Kenya, Kenya Gazette Supplement No 59 (Bills No 21) (2003).Google Scholar

2 See Opening Speech delivered by the Honourable John Mutua Katuku, Assistant Minister, Ministry of Finance, to the Stakeholders Workshop to Review the Public Procurement and Disposal Bill 2003, held at the Kenya School of Monetary Studies, Nairobi, Tuesday, 4 November 2003 (on file with the author)Google Scholar

3 ibid, with the Minister stating in his address as follows: ‘Ladies and Gentlemen, the government is committed to having the Public Procurement Law enacted. As you may already know, the Public Procurement and Disposal Bill 2003 has already been approved by the Cabinet and is in Parliament. It is due for the second reading.’

4 See generally, above n 12, Public Procurement User's Guide. For an excellent and concise overview of Kenya's procurement system please see Odhiambo, W and Kamau, PPublic Procurement: Lessons from Kenya, Tanzania and Uganda, OECD Technical Papers No 208 (2003) also available at <www.oecd.org/dev/technics>..>Google Scholar

5 See generally, Ikiara, GPublic Procurement: Strengths, Weaknesses and Implications for Economic Governance, a paper submitted to the Kenya Constitutional Review Commission available at <www.kenyaconstitution.org> (last visited on 27 Nov 2003);+(last+visited+on+27+Nov+2003);>Google Scholarand see Ikiara, GK ‘The Role of Government Institutions in Kenya's Industrialization’ in Coughlin, P and Ikiara, GK (eds) Industrialization in Kenya: In Search of a Strategy (J Currey HeinemanLondon 1988).Google Scholar

6 According to a recent paper by the director, the department is understaffed, lacks the necessary funds for effective operation, and lacks necessary equipment such as fax machines, photocopiers, computers and vehicles, particularly necessary for its inspection activities. See Obiri, LPublic Procurement Reforms Strategy: The Kenya Experience, a paper presented at the WTO Symposium on Government Procurement,Geneva, Switzerland(Jan 2003), at 7–8.Google Scholar

7 See Reg 7 of the Exchequer and Audit Act (Public Procurement Regulations), Legal Notice No 51 of 30 Mar 2001. See Public Procurement User's Guide, above 14 n 12.Google Scholar

8 See paragraph 1 of the Duties and Responsibilities of the Public Procurement Directorate, above n 12, Annex IV. Cited in above n 20.Google Scholar

9 ibid para 7.

10 ibid para 8.

11 ibid para 10.

12 ibid para 5.

13 ibid para 13.

14 See Obiri above 8 n 24.Google Scholar

15 See generally, MJC Vile Constitutionalism and the Separation of Powers (2nd edn OUP Oxford 1967) who describes ‘separation of powers’ as the concept that the legislative, judicial, and executive branches of government ought to be separate and distinct and that through this separation, each branch works according to its own authority, forming a check or balance against any abuse of power by the remaining two branches. This concept has been such a strong feature of modern-day democratic constitution making that it is also a foregone conclusion. According to James Madison, ‘no political truth is certainly of greater intrinsic value’, see Federalist Papers No 47. For the origins of the concept please see, Taylor, HThe Origin and Growth of the English Constitution, vol 1 (1889), who noted, for example, that ‘Montesquieu is accepted as the oracle of political theory for that time’ (60).Google Scholar For the influence of this concept to the framers of the American Constitution please see Hutchison, DThe Foundations of the Constitution (The Graftal Press New York 1928) 20–1.Google ScholarSee also Ghai, Y ‘The Rule of Law, Legitimacy and Governance’ (1987) 14 International Journal of the Sociology of Law 179.Google Scholar

16 [1924] 1 KB 171, 205 (per Lord Parker CJ).Google Scholar

17 Civil Appeal No 265 of 1997 (Judgment of Chesoni CJ).Google Scholar

18 ibid.

19 In another unreported case, Stanley Njindo Matiba v The Attorney-General, the applicant applied for an order of certiorari to bring into the High Court, for purposes of quashing, a decision by the Attorney General denying him permission to hire a foreign lawyer to represent him in an election petition in a Kenyan court. The application, lodged with leave of the court, was grounded in subsidiary legislation, that is, Legal Notice No 164. In his ruling the judge stated: ‘Rules made pursuant to a statute are subsidiary legislation. They are made under delegated powers. A delegate's power is confined to the objects of the legislature. The main reason of delegation is that the legislation itself cannot go into sufficient detail. So it makes a skeleton Act. The delegate supplies meat, thus the intention of the legislation must always be the prima facie guide to the meaning of the delegated legislation.’ The court went on to find the purported amendment of Order 53 of the Legal Procedure Rules by Legal Notice No 164 of 1994 null and void to be extent of the inconsistency with s 9 of Kenya's Law Reform Act.Google Scholar

20 See, for instance, the case of Koinange Mbiu v Republic (1921) 1 Chancery Reports 440 in which a regulation on the growing of coffee in colonial Kenya was made in a manner that was inconsistent with the parent statute and therefore held null and void.Google Scholar

21 The Aids virus attacks the CD4 cells and multiplies within the cells gradually reducing their numbers in the human body and thus weakening the immune system. See generally Hogg, R et al. ‘Rates of Disease Progression by Baseline CD4 Cell Count and Viral Load after Initiating Triple- Drug Therapy’ in (2001) 286 Journal of the American Medical Association 2568–77.CrossRefGoogle ScholarPubMed

22 I have been unable to verify whether 28 or 30 machines were ordered. News reports have both numbers. See Mulunda, Luke ‘Red Flags Raised over Procurement of HTV-Aids Equipment’, Financial Standard (Nairobi, 7–13 10 2003) (quoting a figure of 30),Google Scholarand see, ‘Why the DMS was Replaced’, The Daily Nation (Nairobi, 19 11 2003) (quoting a figure of 28).Google Scholar

23 See <www.crownagents.com>) (last visited on 26 Nov 2003).)+(last+visited+on+26+Nov+2003).>Google Scholar

24 See <www.bd.com> (last visited on 26 Nov 2003). In Kenya, this company is represented by Faram East Africa Ltd., a company that is reputed to have ‘strong links with top officials at Afya House’ which is the headquarters of the Ministry of Health. See Mulunda, Luke, ‘Red Flags Raised over Procurement of HTV-Aids Equipment’, Financial Standard (Nairobi, 7–13 10 2003)Google Scholar. The machine it was to supply is known as a ‘FACSCount Machine’.

25 See <www.partec.de> (last visited on 26 Nov 2003). In Kenya, this company is represented by Flambert Holdings Ltd. The machine it was to supply is known as a ‘Cyflow Machine’.+(last+visited+on+26+Nov+2003).+In+Kenya,+this+company+is+represented+by+Flambert+Holdings+Ltd.+The+machine+it+was+to+supply+is+known+as+a+‘Cyflow+Machine’.>Google Scholar

26 2 6 Above n 42, quoting the remarks of a Mr Alan Pringle, of Crown Agents.Google Scholar

27 ibid.

28 ibid.

29 See ‘Why the DMS was Replaced’, The Daily Nation (Nairobi, 19 11 2003) noting that the Director of Medical Services (Dr Richard Muga) came under intense pressure from some government officials to revoke the tender award but declined.Google Scholar

30 See Kimani, D ‘Opposition to Meme Led to Muga's Removal’, The East African (Nairobi, 24 11 2003).Google Scholar

31 Above n 42.Google Scholar

32 ibid, quoting a letter written on the behalf of Partec GmbH by a Mr Roland Goehde.

33 ibid

34 ibid

35 See C A P 391, Laws of Kenya.Google Scholar

36 For information on the minimum criteria required for a prospective supplier at the Kenya Port Authority please see <www.kenya-ports.com/procurement> (last visited on 26 Nov 2003). The requirements are quite basic. All prospective suppliers are required to submit the following to the Procurement & Supplies Manager's office: an application letter; a certified copy of certificate of registration; a certified copy of a certificate of VAT; a certified copy of their PEST number; trade license; a certificate from Ministry of Public Works for construction & civil works, or relevant certificates for other services; a business questionnaire, duly signed and stamped; for scrap dealers, a scrap dealer license and certificate of good conduct is mandatory; and a registration fee of Kshs 1, 000.00 in cash or banker's cheque.+(last+visited+on+26+Nov+2003).+The+requirements+are+quite+basic.+All+prospective+suppliers+are+required+to+submit+the+following+to+the+Procurement+&+Supplies+Manager's+office:+an+application+letter;+a+certified+copy+of+certificate+of+registration;+a+certified+copy+of+a+certificate+of+VAT;+a+certified+copy+of+their+PEST+number;+trade+license;+a+certificate+from+Ministry+of+Public+Works+for+construction+&+civil+works,+or+relevant+certificates+for+other+services;+a+business+questionnaire,+duly+signed+and+stamped;+for+scrap+dealers,+a+scrap+dealer+license+and+certificate+of+good+conduct+is+mandatory;+and+a+registration+fee+of+Kshs+1,+000.00+in+cash+or+banker's+cheque.>Google Scholar

37 See Civil Case No 524 of 2003 (Ruling of Judge Kuloba) (unreported), (on file with the author).Google Scholar

38 See Kaona, B ‘Court Stops KPA from Awarding KShs. 1 billion Tender’, East African Standard (Nairobi, 4 06 2003).Google Scholar

39 ibid.

40 Above 1–2 n 55.Google Scholar

41 ibid 2–3.

42 See Republic of Kenya, Public Procurement Complaints, Review and Appeals Board Baumann Engineering Ltd. (Appellant) and Kenya Ports Authority (Procuring Entity), Application No 18/2003 of 29 May 2003 (on file with the author).

43 Numerical Machining Complex is listed to be under the direct administration of the Ministry of Trade and Industry. See <www.statehousekenya.go.ke/government/trade.htm> (last visited 26 Nov 2003).+(last+visited+26+Nov+2003).>Google Scholar

44 According to some sources, this memorandum of understanding was never actually executed. See, eg, Kisero, J ‘Government Moves to End Mombasa Port's Multi-Million Tender Controversy’, The Daily Nation (Nairobi, 11 11 2003) stating that in a meeting that was held to discuss the memorandum of understanding and the cranes supply tender, it was decided that the two issues be separated and that the memorandum issue be addressed on a later date.Google Scholar

45 ibid.

46 See Agina, B ‘Ministers Challenged on Ports Authority Tender Saga’, The East African Standard (Nairobi, 8 11 2003).Google Scholar

47 Above n 63.Google Scholar

48 Above n 64.Google Scholar

49 These were the Minister for Economic Planning and the Minister for Trade and Industry. See Kisero, Jaindi ‘Curb Ministers' Appetite for Mischief’, The Daily Nation (Nairobi, 12 11 2003)Google Scholar. A third entity that was involved the second postponement was a company known as Triton Petroleum Ltd that wanted to put in its own bid which was subsequently received. See Okwembah, D ‘Tender Saga Man Seeks Ex-MPs Help’, The Daily Nation (Nairobi, 13 11 2003) quoting information received from the personal assistant to the head of the Kenya Ports Authority.Google Scholar

50 See Shaw, R ‘Government Must Cancel this Murky Tender’, East African Standard (Nairobi, 9 11 2003).Google Scholar

51 ibid, quoting the remarks of Dr Mukhisa Kituyi, Minister of Trade and Industry.

52 See Beja, P ‘Port Buys Equipment Worth KShs 100 million’, East African Standard (Nairobi, 15 12 2004).Google Scholar

53 See Republic of Kenya, Ministry of Finance Report on Stakeholders Workshop to Review the Public Procurement and Disposal Bill 2003, held at the Kenya School of Monetary Studies, Nairobi, Tuesday, 4 Nov 2003 (on file with the author).Google Scholar

54 ibid.

55 See Preamble to the Public Procurement and Disposal Bill (2003), which states that it is ‘An ACT of Parliament to establish procedures for public procurement and for the disposal of unserviceable, obsolete or surplus stores and equipment by public entities and to provide for other related matters.’Google Scholar

56 ibid s 2.

57 ibid s 3(1).

58 According to Art 3(1), these include, (a) the Government or any department of the Government; (b) the courts; (c) the commissions established under the Constitution; (d) a local authority under the Local Government Act; (e) a State corporation within the meaning of the State Corporations Act; (f) the Central Bank of Kenya established under the Central Bank of Kenya Act; (g) a cooperative society established under the Cooperative Societies Act; (h) a public school within the meaning of the Education Act; (i) a public university within the meaning of the Universities Act; (j) a college or other educational institution maintained or assisted out of public funds; or (k) and an entity prescribed as a public entity for the purpose of this paragraphGoogle Scholar

59 See Memorandum from the Kenya Institute of Economic Affairs on the Public Procurement and Disposal Bill (2003) at 3–4 (on file with the author).Google Scholar

60 See Musungu, S ‘The Kenya Public Procurement and Disposal Bill, 2003: Comments on the Draft Provisions in the Context of the WTO Discussions on Transparency in Government Procurement’, (unpublished) (on file with the author).Google Scholar

61 Above n 72, s 8(1).Google Scholar

62 ibid s 9, which states that the ‘Authority shall have the following functions—(a) to ensure that the procurement procedures established under this Act are complied with; (b) to monitor the public procurement system and report on the overall functioning of it in accordance with section 20(3)(b) and present to the Minister such other reports and recommendations for improvements as the Director considers advisable; (c) to assist in the implementation and operation of the public procurement system and in doing so—(i) to prepare and distribute a manual and standard documents to be used in connection with procurement by public entities; (ii) to provide advice and assistance to procuring entities; (iii) to develop, promote and support the training and professional development of persons involved in procurement; and (iv) to issue written directions to public entities with respect to procurement including the conduct of procurement proceedings and the dissemination of information on procurements; and (d) to perform such other functions and duties as are provided for under this Act.’

63 ibid according to s 10: (1) ‘The Authority shall have a Director who shall be the chief executivev officer of the Authority and who shall be responsible for its direction and management. (2) The Director shall be a person recommended by the Advisory Board and approved by the National Assembly. (3) On the approval of a person by the National Assembly under subsection (2), the President shall appoint the person as the Director.’

64 ibid s 23 states that ‘The functions of the Advisory Board are—(a) to advise the Authority generally on the exercise of its powers and the performance of its functions; (b) to approve the estimates of the revenue and expenditures of the Authority; (c) to recommend the appointment or termination of the Director in accordance with this Act; (d) to perform such other functions and duties as are provided for under this Act’

65 ibid ss 25(l)-(3).

66 ibid s 26(2).

67 ibid s 26(3).

68 ibid s 27(1).

69 ibid s 27(2).

70 ibid s 29(3) which states: ‘A procuring entity may use restricted tendering or direct procurements an alternative procurement procedure only if, before using that procedure, the procuring entity—(a) obtains the written approval of its tender committee; and (b) records in writing the reasons for using the alternative procurement procedure.’

71 ibid s 30.

72 ibid s 31(1) which states: ‘A person is qualified to be awarded a contract for a procurement only if the person satisfies the following criteria—(a) the person has the necessary qualifications, capability, experience, resources, equipment and facilities to provide what is being procured; (b) the person has the legal capacity to enter into a contract for the procurement; (c) the person is not insolvent, in receivership, bankrupt or in the process of being wound up and is not the subject of legal proceedings relating to the foregoing; (d) the procuring entity is not precluded from entering into the contract with the person under section 33; (e) the person is not debarred from participating in procurement proceedings under Part IX; (f) such other criteria as the procuring entity considers appropriate. (2) The procuring entity may require a person to provide evidence or information to establish that the criteria under subsection (1) are satisfied. (3) The criteria under subsection (1) and any requirements under subsection (2) shall be set out in the tender documents or the request for proposals or quotations or, if a procedure is used to pre-qualify persons, in the documents used in that procedure. (4) The procuring entity shall determine whether a person is qualified and that determination shall be done using the criteria and requirements set out in the documents or requests described in subsection (3). (5) The procuring entity may disqualify a person for submitting false, inaccurate or incomplete information about bis qualifications. (6) No person shall be excluded from submitting a tender, proposal or quotation in procurement proceedings except under this section.’

73 ibid s 44.

74 ibid s 40(1) which states: ‘No person seeking a contract for a procurement and no employee or agent of such a person shall give or offer anything, directly or indirectly, to an employee or agent of the procuring entity, a member of a board or committee of the procuring entity or any government official as an inducement relating, in any way, to the procurement’ In the event of inducements, the tenderer shall be disqualified and if the contract has already been awarded, such contract shall be voidable at the option of the procuring entity.

75 ibid s 41.

76 ibid ss 42(1) and (2).

77 ibid s 43.

78 ibid ss 45 and 46.

79 ibid s 47.

80 ibid s 49.

81 ibid s 51.

82 ibid s 60.

83 ibid s 69, which states: ‘If the person submitting the successful tender refuses to enter into a written contract as required under section 68, the procuring entity shall notify, under section 67(1), the person who submitted the tender that, according to the evaluation under section 66, would have been successful had the successful tender not been submitted. (2) Section 67(2), section 68 and this section apply, with necessary modifications, with respect to the tender of the person notified under subsection (1). (3) This section does not apply if the period during which tenders must remain valid has already expired.’

84 ibid s 71, which states: ‘If there will not be effective competition for a procurement unless foreign persons participate, the following shall apply—(a) the invitation to tender and the tender documents must be in English; (b) if the procuring entity is required to advertise the invitation to tender under section 54(2), the procuring entity shall also advertise the invitation to tender in one or more English-language newspapers or other publications that, together, have sufficient circulation outside Kenya to allow effective competition for the procurement; (c) the period of time between the advertisement under paragraph (b) and the deadline for submitting tenders must be not less than the minimum period of time prescribed for the purpose of this paragraph; (d) the technical requirements must, to the extent compatible with requirements under Kenyan law, be based on international standards or standards widely used in international trade; (e) a person submitting a tender may, in quoting prices or providing security, use a currency that is widely used in international trade and that the tender documents specifically allow to be used; and (f) any general and specific conditions to which the contract will be subject must be of a kind generally used in international trade.’

85 ibid ss 73 and 74.

86 ibid ss 75 and 76.

87 ibid ss 77 ff.

88 ibid ss 89 and 90.

89 ibid ss 91 and 92.

90 ibid s 93.

91 ibid s 94(1).

92 ibid s 96, which states as follows: ‘Unless the matter is resolved to the satisfaction of the person who requested the review, the accounting officer of the procuring entity shall give the decision of the procuring entity within fourteen days after the procuring entity received the request for the review. (2) The decision given by the accounting officer shall be in writing and shall set out reasons for the decision and the accounting officer shall ensure that a copy of the decision is given to the person who requested the review.’

93 ibid ss 97(1) to 97(4).

94 ibid s 103.

95 ibid, the grounds for such disbarment according to s 119. ‘(1) The Director may debar a person from participating in procurement proceedings on the ground that the person—(a) has committed an offence under this Act; (b) has committed an offence relating to procurement under any Act; (c) has breached a contract for a procurement by a public entity; (d) has, in procurement proceedings, given false information about bis qualifications; or (e) has refused to enter into a written contract as required under section 68. (2) The Director may also debar a person from participating in procurement proceedings on a prescribed ground. (3) A debarment under this section shall be for a period of time, not exceeding two years, specified by the Director.’

96 ibid s 137.

97 See Reich, A ‘The New GATT Agreement on Government Procurement: The Pitfalls of Plurilateralism and Reciprocity, Journal of World Trade’ (1997) 32 JWT 125, 129 citing a study an influential report by the US Accounting Office estimating that the total value of government purchases covered by the Uruguay Round GPA was around US$20 billion annually.Google Scholar

98 For some excellent background information on the agreement and its negotiation please see Hoekman, B and Mavroidis, P (eds) Law and Policy in Public Purchasing: The WTO Agreement on Government Procurement (University of Michigan Press Ann Arbor 1997)Google Scholar; Messerlin, P ‘Agreement on Public Procurement’ in OECD The New World Trading System: Readings (OECD Paris 1995) at 65;Google Scholar and Barshevsky, C, Sutton, A, and Swindler, A ‘Developments in EC Procurement Under the 1992 Program’ (1990) 4 Brigham Young University Law Review 1269 at 1326–6.Google Scholar

99 See Art HI GPA.Google Scholar

100 See Art IX GPA. It is further required that the advertisement be in a previously determined publication and that the notice also be available, at least in summary form, in one of the three official WTO languages, ie English, Spanish, or French.Google Scholar

101 See Art VII GPA.Google Scholar

102 See Art XIII:3 vGPA.Google Scholar

103 See Art VI:2(b). It is also required that any such technical specifications be based on international standards where such standards exists. This will ensure that technical specifications are not used to defeat the non-discrimination element, by for instance favouring one supplier over another or by favouring domestic over foreign suppliers.Google Scholar

104 Art XII4GPA.Google Scholar

105 Art XVIII GPA. The unsuccessful tenderer is allowed to ask for information as to why their bid was rejected the qualities and advantages of the successful bid.Google Scholar

106 See Reich above 128 n 114.Google Scholar

107 See Art XX:2 GPA.Google Scholar

108 Commission of the European Communities, Communication from the Commission to the Council, to the European Parliament, and to the Economic and Social Committee (Brussels, 26 Nov 2003).Google Scholar

109 ibid.

110 WTO, Decision Adopted by the General Council on 1 August 2004, WT/L/579.Google Scholar

111 Seeibid para l(g).

112 See, Eastern and Southern Africa: Negotiating Mandate, at <http://ncb.intnet.mu/mfa/download/negoesa.doc> (last visited 30 Dec 2004).+(last+visited+30+Dec+2004).>Google Scholar

113 See UNCITRAL, Guide to Enactment of the UNCITRAL Model Law on Procurement of Goods, Construction, and Services, UN Doc No A/CN.9/403 at 46.Google Scholar

114 ibid.

115 ibid.

116 ibid.

117 ibid.

118 ibid.

119 ibid 46–7, it states in this regard: ‘Furthermore, the Model Law may help to remedy disadvantages that stem from the fact that inadequate procurement legislation at the national level creates obstacles to international trade, a significant amount of which is linked to procurement. Disparities among and uncertainty about national legal regimes governing procurement may contribute to limiting the extent to which Governments can access the competitive price and quality benefits available through procurement on an international basis. At the same time, the ability and willingness of suppliers and contractors to sell to foreign Governments is hampered by the inadequate or divergent state of national procurement legislation in many countries.’

120 ibid 49.

121 ibid.

122 ibid in this way, the rules will ‘facilitate […] the exercise of the right of aggrieved suppliers and contractors to seek review. That in turn will help to ensure that the procurement law is, to the extent possible, self-policing and self-enforcing. Furthermore, adequate record requirements in the procurement law will facilitate the work of Government bodies exercising an audit or control function and promote the accountability of procuring entities to the public at large as regards the disbursement of public funds’, 63.

123 ibid 60–1. Affirming the universality of this principle the guide states that it should be found useful even for States that already have an elaborate administrative law that demands ready public access to legislation. For this states, ‘the legislature may consider that a provision in the procurement law itself would help to focus the attention of both procuring entities and suppliers and contractors on the requirement of adequate public disclosure of legal texts concerned with procurement procedures.’

124 ibid 55.

125 ibid.

126 ibid 76.

127 ibid.

128 ibid.

129 ibid In this regard, the guide states that one way of properly using the quantification process is ‘to quantify in monetary terms the various aspects of each tender in relation to the criteria set forth in the solicitation documents and to combine that quantification with the tender price. The tender resulting in the lowest evaluated price would be regarded as the successful tender.’

130 ibid77. The UNCITRAL guide provides an example of implementing the margin of preference. It states: ‘As to the mechanics of applying the margin of preference, this may be done, for example, by deducting from the tender prices of all tenders import duties and taxes levied in connection with the supply of the goods or construction, and adding to the resulting tender prices, other than those that are to benefit from the margin of preference, the amount of the margin of preference or the actual import duty, whichever is less.’

131 ibid 52–3.

132 ibid52–3.

133 ibid. The Model Law also gives to restrictions on the basis of nationality that may result from regional economic integration groupings that accord national treatment to suppliers and contractors from other States members of the regional economic grouping, as well as to restrictions arising from economic sanctions imposed by the United Nations Security Council.

134 See Karangizi, SRegional Procurement Reform Initiative, Paper presented at the Joint WTO World Bank regional workshop on procurement reforms and transparency in public procurement for English speaking African countries (Dar-es-Laam, Tanzania 14–17 Jan 2003), which notes also that COMESA's interest in public procurement reform was part of its wider strategy of having a cohesive regional competition policy (1).Google Scholar

135 ibid

136 See COMESA Doc COM/CM/V/2 (especially at para 54). See also Report of the Fifteenth Meeting of the COMESA Council of Ministers, held 13–15 Mar 2003 at the Friendship Hall, Khartoum Sudan. The document is available online at <www.comesa.int> (last visited on 27 Nov 2003)+(last+visited+on+27+Nov+2003)>Google Scholar

137 Art 3(c) outlines the aims and objectives of COMESA, including the desire to cooperate in the creation of an enabling environment for investment. The ‘enabling environment’ in this regard would definitely include an open and transparent government procuring system. For an excellent summary of the COMESA history and objectives, please see Karangizi, S, ‘Customs Enforcement in a Regional Integration Arrangement: The Case of COMESA’ in Yepes-Enriquez, R and Tabassi, L (eds) Treaty Enforcement and International Cooperation in Criminal Matters (2002) 322–330.CrossRefGoogle Scholar

138 Art 4(6)(b) provides for the harmonization of laws throughout the COMESA region. This should make for an open and predictable system of obligations on the part of businessmen in the region.Google Scholar

139 Art 55 is a more general provision in which all COMESA Member States agree not to take any actions or put in place any measures that defeat the objectives of free trade.Google Scholar

140 ibid See also Karangizi, above 3 n 148.

141 ibid

142 See also Report of the Fifteenth Meeting of the COMESA Council of Ministers, held 13–15 Mar 2003 at the Friendship Hall, Khartoum Sudan (para 322) reporting as follows: ‘the representative of African Development Bank made a statement. He congratulated the Government of Sudan and COMESA Secretariat for the successful arrangements made for the meetings. He pointed out that COMESA was an important building block to the African Union and was glad that it was making great strides in achieving vision on African integration. He pointed out that ADB maintains very close cooperation with COMESA, which was sealed in 1999 when the two organisations signed a cooperation agreement. ADB has so far provided funding totalling about US$4.6 million to COMESA. Council noted that the ADB current direct support to COMESA was US$1.5 million grant for public procurement reforms. Council also noted that ADB was considering some COMESA pipeline projects including an agriculture trade project and seminar for COMESA staff…’ (emphasis added).Google Scholar

143 Karangizi, , above 3 n 148.Google Scholar

144 ibid 6.

145 See Fall, YPublic Procurement Reform: the Role of the ADB, Paper presented at the Joint WTO-World Bank regional workshop on procurement reforms and transparency in public procurement for English speaking African countries held in Dar-es-Laam, Tanzania 14–17 Jan 2003. The presentation is available online at <www.wto.org/english/tratop_e/gproc_e/wkshop_tanz_jan03/fall_e.ppt#l>..>Google Scholar

146 Above n 156, para 85.Google Scholar

147 ibid.

148 ibid para 86).

149 ibid.

150 ibid.

151 ibid.

152 See Odhiambo, W and Kamau, PPublic Procurement: Lessons from Kenya, Tanzania and Uganda, OECD Technical Papers No 208 (2003) also available at <www.oecd.org/dev/technics>..>Google Scholar

153 According to Wittig, in Guinea, new regulations are being formulated with national and international stakeholders. It is intended that a new ‘central procurement office will develop policies, training programs and also oversee selected contract award decisions, and install management information systems.’ See Wayne Witting Public Procurement and the Development Agenda, International Trade Centre, at 9 available at <www.intracen.org>..>Google Scholar

154 In the Gambia, the intended changes are supposed to yield ‘a new legal framework, organizational infra-structure and training programs affecting public procurement’ See ibid.

155 This exercise will involve the ‘harmonization of legal frameworks, electronic procurement and a comprehensive training program.’ See Witting, above n 167.Google Scholar