NON-DISCRIMINATION IN PUBLIC PROCUREMENT: ART. 35 OF THE EAC COMMON MARKET PROTOCOL – IS IT A TOOTHLESS TIGER?
GENERAL INTRODUCTION
1.1 Back ground of the problem
The history of public procurement is not a new phenomenon in East Africa and the world in general. Historically the countries found East African (Tanzania, Kenya and Uganda) they shared common political and culturally aspects before and after independence. In 1960’s most of African countries they were attain independence, that rendered Tanzania, Kenya and Uganda they were decided to form or to establish East African Community in 1967, for the aim of promoting common market among partner states. That to make sure they implement common market, in 1974 they established procurement system through supplies of procurement offices in the ministries. But unfortunately all that efforts were failed soon after collapse of East African Community in 1977.
Later in 1999 the ideal of formed East Africa Community started again, were in 1999 it was established East African Community which under the treat for the establishment of East African Community, the community involved Tanzania, Kenya and Uganda, but later in 2007 Burundi and Rwanda joined the community.
In 2010 the EAC Common market protocol come into force following ratification by all five EAC Partner States with the aim of promoting of the common market. Under the EAC Common market protocol enshrined about non-discrimination among the partner states on any matter involve public procurement such as suppliers, products or services originating from one partner state and cutting across to the other partner states, for the purpose of achieving the benefits of free competition in field of public procurement. Public procurement refers to the process by which public authorities, such as government departments or local authorities purchase work, goods or services from companies. It range from the purchase of routine supplies or services to formal tendering and placing contracts for large infrastructure projects.
That means EAC Common market protocol aimed to promote equal opportunity to every member’s states of East African Community to get opportunity, chance or tender in case there is any procurement service or product provided by partner states, because all member states should be treated equally and enjoying the benefit from the common market.
But despite the main objective of EAC common market protocol is to ensure that every partner states are benefiting from the establishment of EAC common market absolutely on the aspect of public procurement, but still things are quietly different than it was intended, member states are selfish and public procurements are done within the boundaries of each member state and not within the regional as the protocol provide. This has inspired me to make research on non-discrimination in public procurement as enshrined by Article 35 of EAC Common Market protocol to go deep and see whether it’s a toothless tiger or not. And to find reasons which cause Article 35 of the mentioned protocol fail to resolve this problem of discrimination in public procurement in East Africa community. 1.2 Statement of the problem
In 1999 East African countries (Tanzania, Kenya and Uganda) with common intention they discussed and decided to form the East African Community, apparently in the same year they made the treat for the establishment of East African community, apparently the community was officially came into operation in 2000 soon after its establishment. In 2007 community expanded whereby Rwanda and Burundi they had joined the Community and Later in 2016 South Sudani was officially announced to be the sixth member of East African Community (EAC) block after President Salva Kiir signed ascension treaty in Tanzania’s commercial capital, Dar es Salaam. Categorically the East African Community treaty explicitly provides mandates to the member states to create and adopt protocol which would facilitate and promote common market among the partner states.
That in 2009 the East African Community members by then (Tanzania, Kenya, Uganda, Rwanda and Burundi) they had established EAC Common market protocol and officially came into operation in 2010. The main objective of this protocol is to promote common market within the Community by ensuring the free movement of people, services and goods within the partner states. But when talks about free movement of people, services and goods within the boundaries of the community means that there is no any limitation or obstacles when people moves with their goods and services from one state party to another. That to promote and enhance that the EAC Treaty under Article 35 which establish EAC Common market protocol absolutely states about public procurement as provided hereunder;
“The partner states shall not be discriminated against suppliers, products or services originating from other partner states, for purposes of achieving the benefits of free competition on the field of public procurement”
Definitely the gist for the establishment of Common market protocol is to ensure that partner states shall enjoy free movements of people, goods and services to other partner states without any limitations or discrimination.
With all effort of promote equality in public procurement among the partner states, such as to establish legal regime that governing public procurement, still there is discrimination in public procurement among partner states. For instance Tanzania as the case study many government and private tenders for procurement are widely published within the boundaries of Tanzania to only people in Tanzania instead of announcing to all member states of the EA Community. This make the researcher to examine the effectiveness of EAC Common market specifically on non-discrimination of public procurement, and to look in deep the gist of Article 35 of the EAC Common market protocol is it a toothless tiger or not, and if yes what are the solutions of it.
Research objective
The researcher will advanced the following objective
1.3.1 Main objective
● To make analysis on the effectiveness of EAC Common market protocol specifically on non-discrimination of public procurement among partner states of East Africa Community as provided by Article 35 of EAC Common market protocol, and propose other way which will help in promoting non-discrimination in public procurement in East Africa Community. 1.3.2 Specific objectives
● To examine the effort made by the East African Community members in promoting non-discrimination in public procurement within their region.
● To investigate and suggest the best practice that would help to reduce discrimination in public procurement among partner states of East Africa Community. 1.4 Hypothesis
The researcher will concentrate on providing the following assumptions:
● That non-discrimination of public procurement among partner states of East African Community as provided by EAC Common market protocol are ineffective.
● That there is a need of having a common legal framework govern public procurement in East Africa Community member states.
● That there is a need of independent public procurement body of East Africa Community partner states, which will deal with all public procurement matter arise within a partner states of East Africa Community.
The scope of the study
The scope of the study will be fixed within the geographical boundaries of East Africa Community, as the research will be conduct specifically at Tanzania.
1.6 Significant of the study
● To make awareness to the EAC Common market protocol formulators or law makers when they intend to come out with the suitable effective protocol or amend the existing protocol which provide non-discrimination in public procurement.
● To recommends some necessary measure to tackle the problem of discrimination in public procurement among partner states of East Africa Community.
● To be point of reference for those who will conduct research in the subject public procurement among partner states in East Africa Community.
Research methodology
The research will use the following methodology to collect data.
Primary Data Collection
This is the data collection method which will be employed by the researcher to obtain first hand data by attending at the specific intended area.
Interview
Under the interview the research intend to collect data through different interviewees, for the purpose of this study approximate 30 persons will be interviews, this will help researcher to gather much information from the respondents. The interview will be conducted in different places, such as the office which responsible with public procurement in Tanzania, Public members, stakeholders and university students.
Questionnaire
The researcher will employ this method of data collection by formulate closed questionnaire with the alternative answers which the respondent will chose. Also other question will be open question without alternative answer that will require the respond to answer what he or she know. The researcher prefer to use both closed and open questionnaire due to the reason that closed questionnaire enables the study to focus on specific information and it save time, while open questionnaire enables the respondent to provide more explanation depend on their level of understanding. For the purpose of this study approximate 50 questionnaire will provide to the different intended interviewees.
Secondary Data Collection
The research also will employ secondary data collection, where information will be obtained from various secondary sources such as books, articles, and electronic sources gathered important information relating to research.
Literature review
That the study will look on the other writers, whose already have some literature on the subject matter as the researcher intend in this paper. Those are:
Prof. Dr. Jur Ruth Nielsen,
argues that equality problems in procurement context may arise from equality failures in the procurement practice of the contracting authority, such as a direct or indirect discrimination on the grounds of nationality, race, sex and any other things in the contracting authority’s conduct of procurement process. In this work the author has try to pin point out the reason and method of promoting public procurement, this will help a knowledge in my research.
Odhiambo. W and Kamua. P,
argues that adherence to public procurement procedure is important if public funds are to be used in the best way possible. Crucial in this respect is a sound enforcement mechanism that ensures that procurement entities comply are duly punished. Part of the reason why public procurement in East Africa has been disorder is because of the legal frame work that has been rather unclear and ineffective in ensuring efficient and economic public procurement. It is little wonder therefore that the procurement reforms in the three countries have focused more on the legislative framework. The aim has been to enact legislation to guide public procurement effective. The authors here try to show that the law governed public procurement in East Africa are required to harmonized in order to be effective in matter of public procurement.
Sope Williams,
argues that in a new millennium, a wave of public procurement reform swept across the African continent. From north to South Africa, countries engaged in extensive legal institutional and organizational reform of their procurement framework to make procurement system fit for the purpose, transport, accountable and less prone to corruption, fraud and mismanaging. Apart from reform at the country level, Africa also witnessed the regionalization of the procurement regulation with the aim of providing regional coherence and uniformity in procurement regulation towards the better integration of common markets in Africa. In the view of this perspective, authors suggest that in order to have effective public procurement it should prepare procurement regulation, which govern all process of public procurement. Prof. Madara Ogat, Dr. Samuel Nyandams, Mr. John Kenduiwo, Mr. Joseph Makaya and Dr. Waithaka Iraki, argues that in so far public procurement has important economic and political implications, ensuring that the process I well understood by both actors (the government, the procurement entities, the business community/ supplies) and the other stakeholders including professional associations, academic institution and the general public. The authors in this study tries to suggest that in order to ensure public procurement, the process of it should be transparence.
BIBLIOGRAPHY STATUTES/ TREATIES
The Treat of Establishment of East Africa Community, 1999 The East Africa Community Common market protocol, 2009
BOOKS
PROF. JUR RUTH. N (et al.) (2011), Discrimination and Equality in Public Procurement. ODHIAMBO, W (et al.) (2003). Public Procurement: Lesson from Kenya, Tanzania and Uganda. SOPE, W. (2015) A Comparative Analysis of Public Procurement Reforms in Africa: Challenges and
Prospects.
WAITHAKA, I. (2009). The Long Term Policy Framework for Public Procurement in Kenya.