POLITICAL PATRONAGE ON THE OPERATIONALISATION OF PUBLIC PROCUREMENT LAW IN KENYA NJUGUNA HUMPHREY KIMANI REG. NO. G80/83401/2012 A Thesis Submitted in Fulfillment of the Requirements for the Award of Degree of Doctor of Philosophy in Law of the University of Nairobi 2017 ii DECLARATION This thesis is my original work and has not been presented for a degree in any other university. Njuguna Humphrey Kimani Signature................................ Date ................................... This thesis has been submitted for examination with our approval as University Supervisors. 1. Prof. (Justice) James Otieno Odek Signature................................ Associate Professor of Law (UoN) Date:...................................... 2. Prof. Paul Musili Wambua Signature:............................ Associate Professor of Law (UoN) Date:....................................... 3. Dr. Attiya Waris Signature:............................... Senior Lecturer of Law (UoN) Date:....................................... iii DEDICATION To my loving parents, the late Mzee Henry Njuguna, popularly known as Sir Henry and my mother Esther Wanjiru Njuguna; I share this work with both of you for always encouraging me to achieve my goals and for having unwavering confidence in my abilities even during challenging times. You provided infinite compassion and support from which I drew the values of a life-long respect for education. To my dear wife, Nancy Njuguna, our loving children: Njuguna, Kamau and Wanjiru, I thank you for your love, support and patience during the entire process of this study. And to the people of Kenya, who for years have stood for a just society of men and women; those who have risked their lives in fighting for reforms, and to those who continue to advocate for good governance, integrity, transparency and accountability, this study hails you for your selflessness and dedication. iv ACKNOWLEDGEMENT I wish to acknowledge my supervisors; Prof. (Justice) James Otieno Odek, Prof. Paul Musili Wambua and Dr. Attiya Waris, whose experiences and insights provided the essence of this research. I commend them for their wealth of knowledge in the field of Law, which is exceptional and invaluable to this study. They dedicated long hours to read through and correct the many copies of my research proposal and thesis which I have submitted to them for examination. They provided valuable criticism which has shaped the course of this study. To my friend, Mr. Paul Odhiambo Chweya, who assisted me in data collection, analysis and gave me constructive criticisms throughout the process of compiling this thesis, I thank you. Keziah Njoroge stands acknowledged for her editorial contribution. I also wish to acknowledge the services of all the people who made this work a success; the staff and members of the National Assembly of Kenya and various committees of the Assembly, the Public Procurement Oversight Authority, the Registry of the High Court, staff of Transparency International Kenya, Commissioner Ms. Linda Ochiel of the National Cohesion and Integration Commission (NCIC), N.K.N & Co. Advocates and Metrocosmo Limited, for their interest and interactive discussions that informed this study. To the officers in government, bidders, members of the civil society and law enforcement agencies, I wish to register my appreciation for the support you accorded me during the entire study. To all those who were involved in this study in one way or another and are not mentioned here; thank you and may God bless you. v ABSTRACT The overall objective of this study was to investigate the influence of political patronage on the workings and delivery of the Public Procurement Law in Kenya. Literature reviewed illustrates that achievements have so far been made in creating the necessary legal, policy and institutional frameworks for efficient and proper management of the public procurement sector.1 The Public Procurement and Disposal Act, 2005 (hereafter PPDA, 2005)2 has created institutions like the Public Procurement Oversight Authority (PPOA) and the Public Procurement Administrative Review Board (PPARB) to oversee the administration of this sector.3 Other enabling legislations like the Anti-Corruption and Economic Crimes Act, 2003, the Public Procurement Regulations, 2006/2009, and the Public Officer Ethics Act, 2003,4 among others, support the objectives of the PPDA. In spite of all these reforms, the country still experiences runaway corruption among other major challenges in the sector. The study is premised on the hypothesis that the PPDA has largely failed to deliver as envisaged due to political patronage. The study opines that the law does not operate in a vacuum. Its operations and delivery depend on both the intra-system (the legal, policy and institutional frameworks) and the surrounding (political) environment. This study is framed to show that political patronage (intervening/aggravating variable), works to impair law, policy and institutions (provided by the PPDA) through leadership and political patronage in unmerited, ethnically, nepotically or politically influenced appointments, and corruption in the public sector. The main theoretical framework underpinning the study is the intersection between moral and legal philosophy and the role of law in social, economic and political engineering.5 Theories explaining human conduct and the sociological school of thought where law is a tool for social engineering have been examined. The study employed a mixed method approach of investigative descriptive survey design and desktop research and was conducted in Nairobi County. The population of the study was the entirety of public procurement process comprising of all the public procurement entities, watchdog organisations and potential suppliers. Stratified random sampling was used to select 367 respondents and non-probabilistic purposive sampling technique to select heads of departments/supply chain departments in various public entities who participated in the study. The study used questionnaires and conducted interviews to collect primary data from respondents. The research also reviewed information from secondary sources such as relevant case laws, books, Hansard and Committee Reports of Parliament, internet sources, statutes and government policy documents. Quantitative data was analysed using the Statistical Package for Social Sciences (SPSS) computer software, results tabulated in bar graphs and frequency distribution tables and an in-depth analysis of the results conducted along the study objectives. Qualitative data was analysed thematically along the study objectives.Following the systems theory, the research interrogated the intra-system elements (law, policy & institutions) and established that there exist minor challenges in law as currently constituted and the institutions therein. However, those challenges were found to be minor and could not have contributed to the failure witnessed in the sector. As per the systems theory, the study interrogated the environment (outer system) in which the law works and political patronage emerged as the major challenge to the workings and delivery of public procurement law in Kenya6as it exploits legal, institutional and policy weaknesses to impair the functioning of the law. It emerged that lack of political goodwill among the leadership and the failure to adequately back the law and provide a conducive environment in which the rule of law thrives are some of the 1 Africa News Service, ‘Gaps in Graft War Revealed’, April 30 2007 Issue 2 Accessed from www.fsdkenya.org on March 24, 2017 3 Accessed from www.ppoa.go.ke on March 24, 2017 4 Accessed from www.acauthorities.org on March 24, 2017 5 Lobban, Michael, “A Treatise of Legal Philosophy and General Jurisprudence”, 2016. 6 Also refer to New York University School of Law, ‘Comparative Law Research’, at http://www.nyulawglobal.org/globalex/index.html accessed on March 12, 2017 vi main challenges facing the law. These findings bring into question our moral and cultural values as a people. As a country, we may be having a problem because of breakdown in our moral, values and cultural system. It might be that our culture encourages corruption, impunity, lack of respect for the rule of law and acquisition of illicit wealth to an extent that we have embraced these vices as a way of life. To address the challenges, the study recommends a new effort or initiative to be directed at managing the political leadership in the country to align it to the letter and the spirit of Article 10 and Chapter 6 of the Constitution, 2010.7 The political leadership should, at all times be seen to act in the best interest of the sovereign. State and public officers and all other persons, while interpreting the Constitution or any other law, public policy decisions, should take into account the principles 8 of patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; good governance, integrity, transparency and accountability; and sustainable development.9 Public authority should be exercised on the basis of public trust. Selection to any public position should be made on the basis of personal integrity, competence, suitability, objectivity, impartiality in decision making, no nepotism, favoritism or corrupt practices, selfless service, honesty and accountability to the public among