Beyond UNCITRAL: The Challenges of Procurement Reform Implementation in Africa

• Jurisdiction: South Africa
• Pages: 209-224
• Author: Sope Williams-Elegbe
• Published date: 16 August 2019
• Citation: (2014) 25 Stell LR 209
• Date: 16 August 2019

209

BEYOND UNCITRAL: THE CHALLENGES OF

PROCUREMENT REFORM IMPLEMENTATION

IN AFRICA

Sope Williams-Elegbe

LLB (Lagos) LLM (London School of Economics) PhD (Nottingham)

Research Fellow, Department of Public Law and Deputy Director, African Public

Procurement Research Regulation Unit, Faculty of Law, Stellenbosch University

1 Introduction

In 1994, the United Nations Commission on Inte rnational Trade Law

(“UNCITRA L”) developed the rst comprehensive model law for the

procurement of goods, ser vices and construction, to be used as a t emplate for

countries wish ing to regulate or reform their public procure ment systems. The

model law was a huge success and was used by many developing count ries

that decided to reg ulate government procurement for the  rst time, or amend

existing procure ment legislation.1 However, evolutions in procurement

methods; innovations in relat ion to e-technologies; the trend toward s

harmonisation of procu rement practices and reg ulation; and other changes

such as the increasing move towards public-p rivate partnerships, outsourci ng

and the use of concessions meant that by the m id-2000s, the 1994 model law

was in danger of becomi ng obsolete as it did not take into account innovations

in the rapidly changing pro curement space. Thus, i n 2004, UNCITR AL

decided that the model law could benet from being updated to reect such

changes and new procurement pr actices.2 The new model law was nal ly

adopted in 2011, with its accompanying guide being completed in 2012.3

Although the 1994 model law was used as the basis of procu rement

regulation in many cou ntries in sub-Sa haran Afr ica, the passage or reform

of procurement regulation i n line with the model law, in itself and without

more, is i nsufcient t o bring about the desired objectives of procurement

reform and regulation. T he main objectives of procurement reform i n Africa

have been stated to be the est ablishment of a public procurement fr amework

that foste rs “transpa rency, efciency and mechan isms for enforceme nt,

1 S Arrowsmit h & C Nicholas “The UNCI TRAL Model Law on P rocurement of Goo ds, Construc tion, and

Services” i n S Arrowsmith & J Tillipm an (eds) Reform of the UNCITRA L Model Law on Procureme nt

Procureme nt Regulatio n for the 21st Century (2010) 1 3-5; R Hunja “The U NCITRA L Model Law

on Procurem ent of Goods, Con struct ion and Servic es and its Impa ct on Procur ement Reform” in S

Arrowsmit h & A Davies (eds) Public Procurement: Global Revolution (1998) 97; R Hunja “Obstacles

to Public Proc urement Refor m in Developing Cou ntries” in S A rrowsmith & M Trybus (eds) Public

Procurement: The Continuing Revolution (2003) 13 See B Basheka “Public Proc urement Reforms in

Africa: A Tool for Effec tive Governance of the Publ ic Sector and Poverty Reduct ion” in KV Thai (ed)

International Handbook of Public Procurement (2009) 131

2 C Nicholas “Reform of t he UNCITRAL Model Law on P rocurement” (2010) EBRD Law in Transiti on

Online 1

3 See UNCIT RAL Model law on P ublic Procu rement (2011) General Assembly Re solution 66/95 w

uncitral org/uncitral/en/uncitral_texts/procurement_inf rastructure/2011Modelhtml> (accessed 25-02-2014)

(2014) 25 Stell LR 209

© Juta and Company (Pty) Ltd

coupled with an instit utional arrangeme nt that ensures consist ency in overall

policy formulation and implementation”4 as well as the development of a

professional cadre of staff.5 However, the objectives of public procurement

reform often go beyond the establishment of an adequate procurement system,

and Basheka identies seven wide-rangi ng objectives of public procur ement

reform in Africa . These are: to improve the governance of the public sect or;

to respond to global forces and incr ease the participation of the private sector

in public procurement; to i ncrease trans parency and min imise corr uption; to

improve accountability of procu rement systems; to incre ase coordination in

public procurement; to improve professionalism of the procu rement cadre;

and to improve service deliver y and reduce poverty.6 Evenett and Hoekman

also suggest that procur ement reform is import ant to development, as it

will be difcult for a state to mee t the needs of its citizens without a public

expenditure syste m that includes effective public procurement policies.7

It can thus be sur mised that apar t from the establishment of an adequate,

modern and well-funct ioning procurement syst em, procurement reform is

also intended to improve public sector governa nce and accountability and aid

socio-economic development.

As stated earlier, it has been su ggested by the existing lite rature on public

procurement reform that for proc urement reform to succeed, certai n elements

are required beyond legal reform.8 This a rticle is an attempt to d istil some

of these elements using the South Af rican and Nigerian procu rement reform

experience as case st udies and discusses wh at is lacking in procu rement

reform efforts in sub -Saharan Af rica and possibly underm ining these reform

efforts. The ar ticle is a result of research carried out on the public procu rement

systems of South Africa a nd Nigeria between 2011 and 2012.

2 Beyond legal reform: What is necessary for succes sful

procurement reform?

2 1 Capacity building

A critical element that needs to a ccompany legal reform in public

procurement is capacity bu ilding. This may be descr ibed as the process of

developing or enhancing the ski lls of procurement personnel to enable them to

function effectively and achieve measu rable results. In par ticular, “capacity-

4 Hunja “Obstacle s to Public Procurem ent Reform in Developing Cou ntries” in Public Pro curement: The

Continuing Revolution 15

5 15

6 See Basheka “P ublic Procurement Reforms i n Africa: A Tool for Effective Governa nce of the Public

Sector and Pover ty Reduction” in International Handbook of Public Procurement 131, 145

7 SJ Evenett & BM Hoekm an International Co operation and the Refor m of Public Procuremen t Policies

Research Working Paper (2005 ) 1 21-25

(accessed 24- 02-2014) See also the views of S Karang izi & I Ndahi ro “Public Procurement Refor ms

and Development i n the Eastern and Southe rn Africa Region” in RH G arcia (ed) International Pub lic

Procureme nt: A Guide to Best Prac tice (2009)

8 See Basheka “P ublic Procurement Reforms i n Africa: A Tool for Effective Governa nce of the Public

Sector and Pover ty Reduction” i n International Handbook of Public Procurement 131, 145; Hunja

“Obstacles to P ublic Procu rement Reform i n Developing Count ries” in Pub lic Procureme nt: The

Continuing Revolution 15

210 STELL LR 2014 1

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