Why transparency matters in projects – Business Daily
Motorists at the Nairobi Expressway Mlolongo Toll Station on Sunday, June 26, 2022. PHOTO | DENNIS ONSONGO | NMG
Vision 2030 aims to transform Kenya into a newly industrialised, middle-income country that provides high-quality life to its citizens.
To achieve this, the government continues to make great strides in the development of ground-breaking infrastructure projects such as the standard gauge railway, the Nairobi Expressway and Konza Techno City.
While many will agree that infrastructure projects are necessary for development, it is also not in doubt that they are very resource thirsty and pose a heavy burden to the taxpayer.
The complexity and costs involved in developing a mega project will inevitably have wide ramifications on a country’s economy.
Take, for example, the debt risk, which any government must remain alive to, the risk of failure by one of the parties to fulfil its side of the bargain under the contracts or even the governance risk that comes with such contracts.
Citizens are especially concerned about ‘opaque’ transactions, which drive costs higher and affect public confidence in government. With these mega projects being ‘public goods’ in every sense of the word and in light of their ramifications upon the citizenry, it follows that the public will inevitably be curious about their details and in particular about whether the deals concluded are fair, and equitable, transparent and cost-effective. A citizen cannot make this assessment in the absence of relevant information.
Many may not be aware that they are entitled to access information on government projects upon request, by virtue of Article 35 of the Constitution and the Access to Information Act. The right to information can only be denied in limited scenarios such as where disclosure is likely to undermine national security, impede the due process of law or endanger the safety, health or life of any person.
The above position was tested in the recent case of Khalifa and another v Secretary, Treasury and four others, Katiba Institute and another, in which the High Court directed the government to disclose the details of the contract for the construction of the SGR.
The petitioner had requested to access the documents, but the requests were ignored for almost 18 months. This prompted the petitioner to file a constitutional petition seeking a raft of orders, including a declaration that the failure by the respondents (Transport PS and Public Works, PS, the Treasury and Attorney-General) to provide the information sought violated constitutional provisions on access to information, transparency/openness and accountability.
The respondents sought to rely on the Official Secrets Act, arguing that the contract contained non-disclosure clauses, disclosure would endanger state security, and that the information sought was privileged.
Upon considering the arguments of both sides, the High Court ruled that public officers have a constitutional duty to disclose information to Kenyans unless the limitation on access to information is warranted on grounds of protecting legitimate national interests.
The court took the position that concerns around secrecy and State security could have been addressed by providing redacted documents to the petitioner.
Applying this to mega projects, transparency can ensure integrity and competitiveness of the procurement process, winning public confidence in government and attracting foreign direct investment, among other benefits. Most importantly, transparency helps fight corruption.
The government has taken some positive steps in this regard. A case in point is the Companies (Beneficial Ownership Information) (Amendment) Regulations 2022, which require parties to provide beneficial ownership information in public procurement, assets disposal and public-private partnerships (PPPs).
The Public Private Partnership Act 2021 also calls for transparency by requiring contracting authorities to publish the results of tenders with key information on the projects. While the PPP Act does not require entire contracts to be published, the PPP Unit has already set up a section for uploading redacted contracts on its website.
All in all, the laws are in place and the court jurisprudence is supportive. Seeing as the transparency train has already left the station, the government should now turn its focus on implementation by leveraging technology, proper communication, reporting and other tools to achieve this noble goal.
Another positive development took place in 2018, when the president issued an executive order (No. 2 of 2018) requiring all Public Procuring Entities to maintain and continuously update and publicize information on the procurement of public goods, works and services, including information on all ongoing contracts entered prior to the date of coming into effect of the executive order.
These are all steps in the right direction towards achieving transparency. Even then, there is room for more to be done on the implementation front and it may take time for us to perfectly balance the principle of non-disclosure (to protect national interests) and transparency since non-disclosure seems antithetical to transparency.
Fortunately, the ground-breaking decision of Khalifa & another Secretary, National Treasury & Planning & 4 others which we have referred to above, provides a lot of direction.