Authors: Frank Mante
Email: frankmante@gmail.com/frankmante@yahoo.com
Abstract: The Paper presents an assessment of current public procurement regulations in Ghana and whether these have been effective and adequate in the fight against corruption in public procurement.
INTRODUCTION
Corruption appears to be one of the structural, endemic and topical issues affecting most developing countries and indeed, a cardinal force, pushing for public procurement reforms especially in developing countries including Ghana. Such reforms among others, aim at reducing or eliminating those elements of the procurement process, which presents opportunities for corruption. As a consequence, a reform strategy which seeks to introduce regulations to combat corruption would not only help limit the discretion of procurement officials or superior public officers from being corrupt but more importantly, help promote transparency, accountability, fairness and judicious use of state resources. Such reforms are embarked upon as a result of the benefit such reforms would bring to a State. Hunja (2002), states that “in the face of shrinking budgets and the need to fight corruption, governments are realising that significant savings can be gained by a well-organised procurement system. Many developing countries have also realised that a well-organised procurement system contributes to good governance by increasing confidence that public funds are well spent. Many developing countries have therefore instituted reforms aimed at making procurement system more transparent and efficient and increasing the accountability of public officials”.
The lack of measures to tackle corruption can therefore, serve as an incentive for actors in the procurement processes to be corrupt. This is against the premise that, the susceptibility of an individual being corrupt, is determined by the level of risk. Impliedly, the higher the risk of being caught and punished for corruption related offences, the less likely it is for an individual to engage in corruption. It is however important to state at the outset that, corruption cannot be completely eradicated as noted in the following statement:
(The King) shall protect trade routes from harassment by courtiers, state officials, thieves and frontier guards… and frontier officers shall make good what is lost… Just as it is impossible not to taste honey or poison that one might find at the tip of one’s tongue so is it impossible for one dealing with government funds not to taste at least a little bit of the King’s wealth. Adapted from the Treatise: The Arthahnstra, by Kantily (Chief Minister to the King in ancient India, circa 300 B.C.-150 A.D. “just as fish moving under water cannot possibly be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out (while) taking money (for themselves)R P. Kangle, 1972. (As reproduced by Daniel Kaufmann’ “Corruption: The Facts” 1997).
Indeed, some have argued that, corruption exists because of the very existence of the procurement function. This is as a result of the huge amounts of money expended in the provision of infrastructure and other social services for the proper functioning of a State. Procurement therefore, accounts for a significant proportion of the Gross Domestic Product (GDP) of most countries ranging between 10-15% in Organisation for Economic Corporation and Development (OECD) countries and in the case of developing countries, this is around 25 percent of GDP (Trepte 2010). Similarly, in the view of Ware et al (2007), public procurement in developing countries account for more than 20 percent of GDP. In the case of Ghana, the World Bank (2003) estimated that this is around 14% of GDD, 50-70% of the national budget (after personal emoluments) and representing about 24% of total imports due to a huge taste and a preference for foreign goods.
In Ghana, the government is largely deemed to be responsible for the provision of majority of infrastructure in the area of health, energy, water and sanitation, roads and education among others, The huge amount of money spent on these various areas of needs, indubitably, has the tendency to create an appetite for corrupt practices or moreso, exacerbate the susceptibility of corruption in public procurement especially, if discretions in the making of procurement decisions are not limited. Corruption in public procurement is therefore induced by the relatively high degree of discretion that public officials and politicians, typically have over public procurement processes relative to other areas of public expenditure. Preventing practices, controlling and enforcing punishments for corrupt practices are without a doubt, critical indicators of good governance and economic development. This is because, the position of a country in the league table of Corruption Performance Index (CPI) by Transparency International (TI), is frequently used by donors and regulators to justify additional interventions and sometimes, by countries themselves to demonstrate improvements in their governance structures. (Galtung, 2006).
The focus of this paper, is to assess the effectiveness and adequacy of procurement regulations in tackling corruption and by extension, how this fits within the context of good governance. It is however, noteworthy to state at the outset that, in other to ensure the legal certainty and enforcement of anti-corruption measures, such measures are enshrined in national Constitutions and Procurement Acts/Laws or Regulations. In the case of Ghana for instance, the various anti corruption measures in the context of public procurement, are principally provisioned in the Public Procurement Act, 2003 (Act 663) (as Amended), supported by Article 284 of the 1992 Republican Constitution and the Criminal Code, 1960 (Act 29). These measures could, be preventive (aimed at preventing the occurrence of corruption), corrective (correcting the possibilities of corruption) or enforceable/punitive (ensuring that those who engage in corruption are criminalized and punished. Notwithstanding a plethora of anti-corruption measures in the form of regulations in the procurement laws of most jurisdictions such as Ghana, there still exist the view that corruption in public procurement is generally rife. Could such a view imply: the need for more regulations; current regulations are not deterring enough; or it depicts the possibility of a lack of enforcement of current regulations? The following paragraphs would seek to explore these concerns by looking at what corruption is, the various regulations provided to fight corruption and whether these are adequate.
