Secrecy on Public Procurement Bill a betrayal of the process and the people

In 2014, recognising a crisis in public procurement, the department began preparing a new Public Procurement Bill. After years of delays, in 2020 a draft was released for public comment. 

At the time, the Office of the Chief Procurement Officer promised publication of public submissions, but it has since stonewalled every effort to gain access to them. This undermines the integrity of the process. It risks perpetuating the disasters of the government’s current procurement system.

At the start of this year, it was 20 months since the Treasury had received public comments. Despite repeated commitments to Parliament that a new bill was imminent, there had been no clear movement in the drafting process. In fact, this promise has been made in at least six ministerial speeches since 2020. 

Having made submissions, civil society organisations, business associations, labour unions and various others had no sense of the bill’s status, of who else had made submissions, what their positions were, and to what extent their comments were being incorporated or passed over. 

In January, amaBhungane, Corruption Watch, the Public Affairs Research Institute and the Public Service Accountability Monitor filed a joint request for access to the submissions under the Promotion of Access to Information Act (PAIA).

They did so on grounds of the trillion-rand scale of South Africa’s procurement budget, the crisis of corruption and non-delivery that afflicts it, and the importance of guarding and guiding the Public Procurement Bill as a critical vehicle for reform. 

In March, Treasury responded that it was processing submissions into a matrix, including “all the comments of stakeholders excluding personal information”. It explained that the bill and the matrix were still under consideration, but would be approved for introduction into Parliament by July.

In these terms, Treasury granted the request, but deferred access under Section 24(1) of PAIA. The section allows deferral, to make it perfectly clear, where records “have been prepared for submission to any legislature”, and have “yet to be submitted”. 

Treasury’s reliance on it involves a non sequitur. A cynic would perceive a sleight of hand. The documents requested by the civil society organisations were not prepared for submission to a legislature, but rather by the general public, in the course of a consultation process, for submission to the Treasury. 

Visit Daily Maverick’s home page for more news, analysis and investigations

Treasury cannot now hide those submissions from public scrutiny on the pretext that it is processing them into a matrix to be submitted to Parliament, because that matrix then becomes a different record from those that the civil society organisations are requesting.

In the meantime, July has come and gone.

We recognise and are encouraged by the relatively robust and transparent consultations that have been conducted in Nedlac. But the new date for introducing the bill into Parliament is now March 2023, which means submissions made in the Treasury’s own public participation process will have been held, as if state secrets, for almost three years.

That’s a bizarre inconsistency.

Participatory decision-making is meant to foster legitimacy. It should facilitate collaborative learning across society, empower coalitions for good government, and throw sanitising sunlight over corrupt collusion between the state and special interests.

When announcing the Cabinet charged with cleaning up State Capture, President Ramaphosa asserted that, “The task of rebuilding our economy and our society requires urgency and focus.” He continued to say that, “It requires cooperation among all sectors of society and the active involvement of all South Africans.” 

Treasury’s delays and its continuing secrecy betray these commitments. 

It does so where the stakes could not be higher. South Africa’s public procurement is in disarray. The evidence is strewn — in a litany of corruption — across newspapers, public audits and the Zondo Report. 

The proof is with us when the lights go out, when the taps run dry, when ordinary people don’t get the state-provided pharmaceuticals they need to survive, and their children face dangerous infrastructure in schools.

Public procurement is implicated in the deterioration of our politics and the stagnation of our economy. An expeditious, collaborative and open process of reform is needed to fix it, but so far this process has fallen short. DM

The Procurement Reform Working Group includes amaBhungane, Corruption Watch, the Public Affairs Research Institute and the Public Service Accountability Monitor — among other civil society representatives.

amaBhungane is a nonprofit centre for investigative journalism. We co-publish our investigations, which are free to access, to news sites like Daily Maverick. For more, visit us on www.amaB.org.