In its January 2020 decision in Moses Gitari & another v. Republic, the High Court of Kenya’s Anti-Corruption Court upheld the sole-sourcing trial conviction of a Senior Deputy Secretary and two Procurement Officers at the Ministry of State for Special Programmes. Those individuals were jointly charged with the willful failure to comply with the public procurement laws and regulations contrary to the Anti-Corruption and Economic Crimes Act. The individuals were sentenced for bypassing the required open tendering rules and procuring building materials for the resettlement of internally displaced persons through an unauthorized invitational Request for Quotations (RFQ) process. As the Court summarized, the “case proceeded to full hearing with the prosecution calling a total of 27 witnesses”. After the trial, the defendants were convicted and ordered to pay a fine or suffer imprisonment of up to one year. The defendants appealed the conviction. In considering the appeal, the Court considered the defendant’s assertions that urgent circumstances required them to bypass open tendering and use an invitational process:
The Appellants were accused of flouting procurement rules and abuse of office by conferring some benefit to some contractors who partially delivered building materials against the contract. The question with regard to Count 1 is whether the procurement rules were followed. According to the prosecution, the process of open tendering under Section 29(1) of the Act ought to have been followed as provided under Part V and in case of alternative method under Part VI, subject to necessary conditions being fulfilled. On the other hand, the appellants argued that due to the urgency of the required materials they had no time to advertise for tendering as required in the open tendering method hence they resulted to restricted tendering.
There is no dispute that open tendering was not followed due to the urgency of the required goods as evidenced by the internal memo by the P.S (Ex. 1) addressed to the 1st appellant. There is no dispute that the appellants were members of the Ministerial Committee that awarded the tenders. The only contestation is whether the method they followed which is disputed was proper in the circumstances and whether the contracted goods were duly delivered and therefore payment properly made.
The Court upheld the trial conviction and ordered the defendants to pay Kshs. 500,000 (approximately $4,500 USD) or suffer one-year imprisonment for the failure to follow open tendering procedures in the award of the contract:
The 1st appellant cannot hide behind ignorance as the law deems every tender committee member to be conversant with procurement procedures. Regarding the 2nd appellant’s argument that he was out of the country when the process commenced, there is evidence that he took part in the award process. This is confirmed by his co-appellant, his defence and evidence of PW2, PW3 and PW4 both members who sat in the committee.
I am therefore in agreement with the trial court that the appellants did disregard the relevant procurement provisions among them Section 29(1) of the Public Procurement Act hence engaged in a tender process that was not compliant with the law. Having found that the ingredients of the offence under Count 1 were properly set out, I have no choice but to uphold the conviction in respect of that Count (Count 1).
As this case illustrates, in some jurisdictions, government staff face fines and potential imprisonment for failing to properly follow applicable procurement rules and procedures. Public institutions in all jurisdictions should consider whether their procurement enforcement mechanisms contain sufficient deterrence against non-compliance.
