“Reject the certificate of urgency attached to the Public Procurement Bill, and request for scrutiny, and transparency through a normal parliamentary process”
Banjul, 5 October 2022
Honorable Members of the National Assembly:
We had first written to the august body in April 2018, when the Fifth Assembly had been sworn in, which witnessed the first democratic legislative elections post 22 years of dictatorship. Even at that time, there was hope that sound democratic governance would be a priority for the coalition administration led by president Adama Barrow. Nevertheless, even at that early honeymoon period, our doubts were raised over the Semlex issue. We wrote to the National Assembly then, raising grave concerns that a precedent was being set, and a culture of secrecy, discretion, and lack of accountability was being cultivated in the new Gambia. We had raised these concerns precisely because the issues of public procurement are vital to any country’s economic survival, as it is also the corner stone of our public service delivery imperatives. This is not only prioritized in every country’s constitution and national policies, but also firmly entrenched in the African Union Convention on Preventing and Combatting Corruption, which Gambia ratified. Article 7 clearly speaks to addressing corruption related offences in the public service and calls for state parties to: ‘Ensure transparency, equity and efficiency in the management of tendering and hiring procedure in the public service’. We had stated in our first letter to the National Assembly that: ‘Elevating a culture of transparency and accountability depends on it, [the Semlex deal], which is why the NAMS must start entrenching a practice of probity, before it is defeated and overwhelmed by impunity, which threatens our national security.’
Hon NAMs, four years have passed, and a Sixth Assembly has been sworn in since then. The culture of discretion and monopoly, minus accountability, which breeds corruption and impunity, as we warned then, is currently being institutionalized, now. The signs were always there that the Barrow administration lacked the discipline and moral fortitude to oversee and lead an honest, transparent, credible and caring government. They showed their colors very early on when they, for the first time, went after the dismantling of the GPPA, when they amended the Act and passed it on 25 April 2018, tabled by the then Vice President Fatoumatta Tambajang-Jallow. Clearly this was not enough. The Barrow administration has now the gumption and audacity to openly table a Bill that will finally give it the latitude it always craved, to gain unfettered access to our State own Enterprises (SoEs), and other ‘monopoly’ businesses belonging to the state. This despite all the evidence and recommendations of the Janneh Commission to strengthen our procurement systems and give support to the Agency tasked with the mandate. Instead, the Barrow administration is determined to do the opposite. He and the administration he leads want to use the NAMs to do their bidding, and further open a culture of corruption, and graft, at the expense of the Gambian people. This should not be allowed.
Hon NAMs, the certificate of urgency attached to this bill is unwarranted and cannot be justified. The provisions in section 101 of the constitution as quoted in the letter, dated 3 October 2022, from the National Assembly secretariat is only partially referenced. There is a clause that states that: “Provided that where the President certifies that the enactment of the Bill is required in the public interest and as a matter of urgency, the Bill may be introduced…” The question then arises as to whether it is in the public interest to fast track this important Bill, and limit the parameters of scrutiny needed to ensure its credibility through the vested constitutional mandate that the NAMs have in performing their oversight duties? Secondly, the urgency of the matter is also suspect because: we are not at war, we are not in a health pandemic (when COVID-19 hit us in 2020 we had implored the president to convene the National Assembly, and he ignored us; we were faced with a disaster then and he did nothing). Nor are we experiencing the aftermath of a natural disaster (the floods that visited the country a few months ago, particularly the capital city, where the Assembly sits and where the president resides, devastated infrastructure, properties and homes, we needed then an urgent sitting then- instead, the president went on vacation). Neither are we facing an imminent food insecurity threat and mass starvation, to warrant the urgency needed to pass a bill, with less than 72 hours’ notice, that is 104 pages, filled with technicalities and hidden traps made for abuse and rife with pathways to repurpose state funds for nefarious means, in one sitting. We also are reliably informed that the Bill was not shared with the Gambia Public Procurement Authority, which speaks volumes on the intent and motivations of this legislative maneuver. It is disrespectful, disingenuous, and outright undemocratic.
Hon NAMs, we maintain that The Gambia’s proposed public procurement Bill, as presented, is the playbook kleptocrats all over the world wish they wrote. It makes crime and corruption, often in partnership with predatory companies and organized crime cartels, almost impossible to identify, let alone prosecute. This is because the proposed legislation has made it technically legal for the state to loot and plunder without ever breaking the law. Were the average Gambian citizen, between the power cuts, job hunts and food inflation, to read the legislation, she may quickly spot comical legal blackholes in between the long sections on fraud and code of conduct. For starters, what should be present is absent, and what is present is lacking in much of the substance that conveys accountability over the public purse — long considered low hanging fruit for exploitative companies and the officials who take kickbacks for contracts, become minority partners through prizes or engage in javelin throwing — ‘a little bit for them down the line’.
The procurement office, which holds the keys to the kingdom is legally allowed to be funded by “gifts” from within Gambia or abroad. This is a strategy that opens the door to undue influence, the kind of purchasing power that not only interferes with who may get contracts (or not) but also how the rules of the game are written. The legislation allows for a type of contract – the lump sum, where the full amount can be paid without a financial breakdown of costs; it makes mention of advertisement of tenders but does not stipulate where or for how long; board members of the procurement committee are allowed to invite advisors to meetings but does not stipulate how such advisors are vetted; restricted tendering – an insider list for secretive procurements, and mergers between companies bidding for the same contract make a play at fairness in its attempts to legalize alleyways of corruptivity but falls miserably short.
Hon NAMs, the misery of this Bill, is undeniably the outcome of the Public Procurement Act’s section 21. This clause guarantees exemption for procurement involving national defense — a clause many countries maintain but which encourages expensive weapons for kickbacks, and accounts for more than 50 percent of corruption globally. Finally, the section also curiously exempts, ‘any other service provided under a monopoly’. This is code for all SoEs (SSHFC, Gamtel, GPA, GCCAA etc..), precisely because the clause gives a free pass over effectively every aspect of government from water, electricity, fuel and waste sanitation to computers, stamps, telex and any other product that a parastatal could access public funding for. And it begs the question, then why bother having a GPPA? The NAMs should halt the tabling of this (6 October 2022) GPPA Bill in its tracks and insist on a normal line of business and treating this Bill like any other Bill. In fact, it should be more inquisitive, and apply the highest degree of scrutiny to this attempt by president Barrow and his administration, to construct the conditions for state capture, legalize corruption and theft of public resources and hollowing out of the already crippled SoEs. Gambians and the world are watching.
Right 2 Know Gambia & DUGA
Right to Know (R2K) Gambia– started its work in October 2016. The founders are a grouping of individuals with professional backgrounds ranging from geology, demographics, economics, international relations and law, communications, and academia. All members are human rights activists and non-partisan.
Democratic Union of Gambian Activists (DUGA)- is an umbrella movement to unite Gambians in North America (US and Canada), Europe and Africa, mobilizing citizens to achieving the goal of a sustainable democracy in The Gambia.