ECONOMIC GOVERNANCE WATCH 2/2023
[10th May 2023]
Non-disclosure of Health Procurements
The Public Procurement and Disposal of Public Assets Act lays down procedures the Government must follow to obtain the buildings, equipment, services, and so on it needs to carry out its functions. Generally the Act requires a Government Ministry or department which wants to obtain something – vehicles or stationery for example – to publish a notice in the Gazette detailing what is wanted and inviting potential suppliers to submit bids. The bids are then evaluated and the contract awarded to the bidder that submitted the most advantageous bid, assessed according to price and other criteria laid down in the Act.
The Act emphasises transparency and fairness. Procurement notices are published in a way that will reach as many potential bidders as possible; bids are evaluated equally according to the same criteria; and all bidders are told who has been awarded the contract and are given an opportunity to challenge the award. The Act recognises however that some procurements are sensitive and should not be published. For example, it may be undesirable to publish the position and layout of barracks or defence works built for the Defence Forces, or details of built in security systems used to protect government buildings. Hence section 3(6) of the Act provides:
“(6) The President, by notice in the Gazette, may declare that it would be contrary to the interests of defence, public security or the national interests of Zimbabwe for the procurement … of any construction works or class of such works to be publicly disclosed, and thereupon this Act shall apply to the procurement … of such works with whatever modifications may be necessary to ensure that information concerning such works … is not disclosed to the prejudice of the defence, security or national interests of Zimbabwe.
General Notice 635 of 2023
In last Friday’s Gazette the President published a notice under section 3(6) of the Act – GN 635 of 2023 [link] – in which he declared that the following are “of national interest” and must not be publicly disclosed:
construction equipment and materials
biomedical and medical equipment
medicines and drugs (pharmaceuticals)
vehicles including ambulances
laboratory equipment, chemicals and accessories
hospital protective equipment, and
repairs and maintenance services of hospital equipment and machinery.
The notice is wrong in two respects: wrong from a strictly legal perspective and, much more importantly, wrong from a broad policy perspective.
Legal Problems
Section 3(6) of the Act allows the President to protect “construction works” – nothing else – from disclosure, and “construction work” is defined in section 2 of the Act as follows:
“construction work” means all work associated with the construction, reconstruction, demolition, repair or renovation of any building or infrastructure”.
None of the items listed in GN 635 falls within this definition. Construction equipment – presumably bulldozers, wheelbarrows etc – and construction materials – bricks, cement, roofing etc – are not “work”. The other items listed in the notice have nothing whatever to do with construction.
On that ground alone the notice is ultra vires section 3(6) of the Act.
A further point is that the notice declares the listed items to be “of national interest” rather than saying, as it should, that it would be contrary to the national interests of Zimbabwe for information about their procurement to be publicly disclosed. The fact that an item is of national interest does not bring it within the ambit of section 3(6).
Policy Problems
From a policy point of view the notice is undesirable and contrary to the spirit of the Act.
As we have said, the Act emphasises transparency and fairness. This is articulated in section 4(1), which lists the objectives of the Act, the first one being:
“to ensure that procurement is effected in a manner that is transparent, fair, honest, cost-effective and competitive”
Transparency in public procurement is extremely important. Without knowledge of what the Government has procured, how much it has paid and who the supplier was, neither Parliament nor the general public will be able to tell if the Government has spent its money wisely – fairly, honestly and in a cost-effective and competitive manner, to use the words of section 4(1) of the Act. Without transparency, corruption flourishes. For example there were well-founded suspicions of corruption when the Ministry of Health purchased items at the outset of the COVID-19 emergency without going through proper procurement procedures, and paid vastly inflated prices for drugs and protective clothing.
What the notice tries to do is prevent anyone disclosing information about how the Government obtains medicines, equipment and services needed for its health institutions. No explanation is given for imposing this veil of secrecy and there is no time-limit: the veil may never be lifted.
What Can be Done?
Obviously the notice can be challenged in court on the ground that it is ultra vires the Act but it may be difficult for a potential challenger to establish sufficient locus standi (i.e. legal grounds) to bring a challenge. Persons who have in the past supplied medical equipment to the government, and who can reasonably expect to supply it in the future, could challenge the notice – but they may be unwilling to do so for fear of prejudicing their relationship with the Government.
In the absence of a legal challenge, Members of the National Assembly should call upon the Vice-President responsible for the Ministry of Health to get the President to repeal the notice. At the very least, they should question the Vice-President on why the notice was necessary – why the nation cannot be told who is supplying drugs and equipment to the country’s health services and how much it is costing us.
If the notice is not revoked then the Auditor-General, and perhaps the Zimbabwe Anti-Corruption Commission, should look very carefully at all State contracts involving hospitals and medical supplies.
