By JASON LAKIN

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The court case that was brought against Kenya's electoral body Independent Elections and Boundaries Commission (IEBC) prior to the elections concerning the procurement of presidential ballots may appear to have been superseded by events.

I do not believe this to be true, however. The case extended important legal precedents on public participation.

In the absence of better guidance from other institutions, court findings on when thresholds for public participation have been met will continue to be exceptionally important.

(I note here that the guidelines on participation developed over the past couple of years by the Ministry of Devolution do not, unfortunately, constitute “better guidance”). It is therefore worth examining the court’s findings.

The first important finding is that public procurement is not immune from public participation.

While acknowledging that this does not lead to any clear prescription for how to involve the public, simply stating, as IEBC had tried to do, that there is no room for public participation in public procurements is insufficient.

This follows, in the court’s view, from the fact that the Public Procurement and Asset Disposal Act specifically references the values of Article 10 of the Constitution, among which figures public participation.

The court finds that all public procurement, not just that involving pivotal matters such as election ballots, is subject to participation.

I believe this finding will be of great interest to many citizens and activists concerned not only about big national procurements, but about county procurement activities.

A second matter is what this requirement amounts to. The judges do not seem to wish to imply, as I had feared, that this means that the public must be involved in every detail of the process, which would render procurement in Kenya even more impossible than it already is.

While the court clearly found that the IEBC did not meet any reasonable standard of public participation in the process, however, it is rather difficult to understand exactly what would have met this standard.

To be sure, the decision to discriminate against certain actors (presidential candidates who were not from the largest two coalitions) counted against a proper procedure.

So, too, did the fact that the IEBC’s alleged participation was a “media briefing” after decisions had already been made and which were held as informational events, rather than consultations.

My reading of the decision is that the court believes that the IEBC should have involved the public in the decision to pursue a direct procurement in the first place, rather than to argue that the public should have been involved at every stage of the process.

As the judgement states at paragraph 195, the key issue is that direct procurement can only be pursued if it is not being used specifically to limit competition.

The judges argue that it is this determination that implies that “the procuring entity must involve the public in its decision to opt for direct procurement.”

The next paragraph also states “In our view, in the initial stages, it cannot be said that the principle of confidentiality which kicks in during or after procurement proceedings bars the application of the principle of public participation.”

Again, the implication is that public participation is critical in the “initial stages” of the process, when the decision to pursue a particular procurement procedure is made.

It follows from this and the court’s other observations about consultation that a proper procedure would need to involve a moment at which the IEBC justifies its proposal to pursue a direct procurement and the public, including those most affected by the decision (all the candidates), is given an opportunity to air their views on whether this is the right approach.

As the court also clarifies, those views can ultimately be overruled, but they must be considered in good faith.

If in the particular case of direct procurement of election ballots this would be the appropriate standard of participation, what would that standard be in other procurements, particularly those that were competitively sourced?

There is no need to explain competitive sourcing in most cases, as that is the default. Would the requirement to involve the public then imply giving the public the opportunity to give their views on the final decision about the winner of the competitive process?

The risk here is that it is difficult to insulate such processes from tender politics. If the loser in a bidding war is sufficiently invested in the outcome, they may easily exploit the participation opportunity to try and derail the procurement.

An alternative might be to give the public an opportunity to comment on the criteria that will be used to decide on the winner.

Assuming well justified, transparent, publicly vetted criteria, the ultimate decision, if also transparent, could be left to the procuring agency. Possible? Yes, but still challenging for many of Kenya’s procuring agents.

Jason Lakin is head of research for the International Budget Partnership. E-mail: [email protected]