Appeals tribunal on the port tender seems to be a complete waste of time
What you need to know:
- The proceedings of the public-private partnership review board, as the five-member tribunal is known, don’t attract much public attention. I was the only media person in a room full of lawyers.
- It was not surprising that one of the lawyers involved in the proceedings went ahead and filed his case at the Treasury-based appeals tribunal. He could not tell the difference between these two duplicitous committees.
- I must confess that I was rather disappointed by the low standards the tribunal set on disclosure of confidential documents as they deliberated on an application by one of the complainants.
On Monday, I attended the proceedings of the appeals tribunal hearing the case where three international investors have lodged complaints about the circumstances under which they were knocked out in the ongoing tender for the concessioning of the second container terminal at the port of Mombasa.
The proceedings of the public-private partnership review board, as the five-member tribunal is known, don’t attract much public attention. I was the only media person in a room full of lawyers.
In a sense, the fact that the proceedings of this tribunal don’t attract headline news is not surprising. It is very new, having been established only a few months ago. Indeed, this is the second case it is hearing since it was created.
As I sat there following the proceedings, I kept wondering where the idea of creating a special body to hear disputes arising from tenders for the so-called PPP projects came from. I wondered whether this entity was not a duplication of the existing Treasury-based public procurement appeals board, and whether its existence represents prudent use of public resources.
Sitting in that small stuffy room at Chester House where the proceedings were conducted, studying the rules and procedures and listening to the arguments by lawyers and pronouncements of the chairman of the tribunal, I could not see anything special or even remotely technical to warrant the creation of this special entity.
Clearly, at issue is a dispute that can be ably handled by the existing procurement appeals board.
In my view, the Chester House-based committee is an expensive superfluity that only exists to serve the interests of lawyers.
It was not surprising that one of the lawyers involved in the proceedings went ahead and filed his case at the Treasury-based appeals tribunal. He could not tell the difference between these two duplicitous committees.
In our desire to show the world that we are transparent and accountable, we have created too many institutions doing the same things, run and managed by political appointees drawing huge allowances at the expense of the taxpayer.
Yet the decisions that the tribunal will make when it resumes sitting on March 15 will have major ramifications.
Because of the high stakes involved, and widespread perceptions about attempts by powerful individuals to manipulate the process, the tribunal has a chance to prove that they have the mettle to set things straight and that they are, indeed, independent.
I must confess that I was rather disappointed by the low standards the tribunal set on disclosure of confidential documents as they deliberated on an application by one of the complainants.
If you hide tender evaluation documents from the public, how do you, as a tribunal, get to earn public trust and image of a truly independent institution insulated from political influence? We must be able to see what those manipulable tender evaluation committee members do in the back room.
That is the only way you can demonstrate that one politically-connected tenderer had been favoured over others.
This is no ordinary dispute; we are trying to take the efficiency of the port of Mombasa to the next level.
Indeed, this project, together with the standard gauge railway, are supposed to be the game-changers in terms of making us the leading transport hub off the Indian Ocean.
Secondly, the findings will carry major implications for diplomatic relations between Japan and Kenya.
The process of selecting an international company to operate the second container terminal at the port has spawned a major row with the Japanese, who have raised serious concerns about the transparency of the process.
Mark you, the Japanese have been the biggest financiers of port development projects in Mombasa, with most of the money being loaned to Kenya on concessionary terms.
Indeed, the new container terminal for which the government is procuring an international operator has itself been built with Japanese financing.
All along, the Japanese believed that having successfully funded and built the terminal, and having signed a loan agreement with the Kenya Ports Authority to construct the next phase, things would go according to plan.
The tribunal must prove that it’s on the side of the taxpayer.
