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2019 E. Afr. L.J. 17 (2019)
The Problem of Discretion and Interplay of Economic and Social Policy Objectives in the Kenyan Public Procurement System: A Review of the Ballot Papers and Laptop Computers Procurement Cases

handle is hein.journals/easfrilaj2019 and id is 25 raw text is: THE PROBLEM OF DISCRETION AND INTERPLAY OF ECONOMIC AND SOCIAL POLICY OBJECTIVES IN THE KENYAN PUBLIC PROCUREMENT SYSTEM: A REVIEW OF THE BALLOT PAPERS AND LAPTOP COMPUTERS PROCUREMENT CASES Muthomi Thiankolu*, Migai Akech and Ken O. Obura' ABSTRACT The problem examined in this paper has two distinct but interrelated dimensions. First, Kenyan procurement laws espouse the pursuit of both economic and social objectives, creating a potential for conflict. The conflict occurs when government bureaucrats make economically efficient but socially undesirable decisions or socially desirable but economically inefficient decisions. Secondly, and closely related to the uneasy coexistence of economic and social objectives, Kenyan procurement laws give government bureaucrats broad discretion to decide whether, the extent and the ends for which they can use procurement as a tool of economic or social policy. Although discretion might arguably enhance administrative efficiency, the Kenyan experience shows that it tends to create strong incentives corruption, favouritism and other forms of malfeasance in public procurement decision-making. This paper, therefore, is a case study of the interplay of economic and social objectives, the problem of discretion and the incidence of corruption, favouritism and other forms of malfeasance in the Kenyan public procurement system. The case study focuses on two projects, namely: (i) the procurement of ballot papers for Kenya's 2017 general election and (ii) the procurement of laptop computers for Kenyan primary schools in 2013. The paper uses the phrase 'economic objectives' as a generic term for all objectives of public procurement regulation that are based on the neoclassical economic idea of the primacy of markets (or market forces) as the appropriate mechanism for allocating society's scarce resources. It uses the phrase 'social objectives,' on the other hand, as a generic term for all objectives of public procurement regulation that are not based on the neoclassical economic idea of relying on markets as the appropriate mechanism for allocating resources. The paper makes three main findings. First, Kenyan government officers deliberately abused and manipulated the two procurement projects to award lucrative contracts corruptly, irregularly, or unfairly to favoured or pre-determined contractors. Second, the deliberate abuse and manipulation of the procurement process in each case precluded government bureaucrats from considering the issue of the interplay between the economic and social objectives embodied in Kenyan public procurement laws. Lastly, although Kenyan public procurement laws may appear good on paper, they are highly susceptible to abuse and manipulation and hence ineffective in curbing the incidence of corruption, favouritism and other forms of malfeasance. * Muthomi Thiankolu is a Lecturer at the University of Nairobi School of Law and a Partner at Muthomi & Karanja Advocates. His research and practice interests are in dispute resolution, constitutional and administrative law, public procurement regulation and international economic law. This paper is based on sections of his doctoral research at the University of Nairobi School of Law, supervised by Prof. Migai Akech and Dr. Ken 0. Obura. Comments and sugges- tions on the paper may be emailed to thiankolu@uonbi.ac.keor muthomi@muthomikaranja.com. ** Migai Akech is an Associate Professor at the University of Nairobi School of Law and an advocate of the High Court of Kenya. His research and practice interests are in public procurement law, property law, administrative law, law and development, and international economic law. *** Dr. Ken O. Obura is a Lecturer at the University of Nairobi School of Law. His research and practice interests are in administrative law, democracy and governance.

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