Why State’s ad agency was doomed to fail: Part II

What you need to know:

  • GAA seems to have been formed in haste given that at the time it was being launched in 2015.

  • The GAA regulations are silent on this in a country where political party interests are often conflated with state interests.
  • A key element of government advertising Acts in best-practice jurisdictions is in clearly stating that government advertising should not be used to advance partisan interests.

The Government Advertising Agency launch documents, especially the one on rules and guidelines, set out advertising procurement procedures for government entities. The misnomer is that government procurement is the responsibility of the Public Procurement Regulatory Authority which took over from the Public Procurement Oversight Authority (PPOA) after the revision of the Public Procurement and Disposal Act, 2005, into the Public Procurement and Asset Disposal Act, 2015.

Although the GAA rules and guidelines are fairly elaborate on the manner of procurement of public advertising, questions can be raised about proper consultation with the key entities in the government procurement processes, namely, the Public Procurement Regulatory Authority (PPRA) and the Public Procurement Regulatory Board (PPRB).

PROCUREMENT

Equally, it was unsettling that the National Treasury CS, under whom government procurement functions fall, would sign away some of his ministry’s functions and responsibilities outside of the established law and procedure. The Public Procurement and Disposal Act, 2005, was a duly gazetted Act. Nothing short of a parliamentary amendment to the Act would have been required if some of its functions were to be transferred from Treasury to the ICT ministry.

Indeed, the GAA seems to have been formed in haste given that at the time it was being launched in 2015, amendments were being debated with some arguing that the GAA should have awaited the passing of the new Act later that year.

UNAMBIGIOUS

A close examination of the old PPOA Act, under which the GAA advertising procedures were instituted, reveals various discrepancies. Where the PPOA stipulated that a “public entity shall establish a tender committee [and a] procurement unit … for the purpose of making decisions”, the GAA was silent on this crucial requirement.

Not even the ministry’s own tender committee is mentioned. Neither do the GAA regulations set out in unambiguous terms how empanelment or selection of media platforms on which public advertising would run was or is done. This is a dicey loophole as regards to procuring advertising generally but more so with respect to advertising for tenders, which is a major budgetary requirement for most public procurement entities.

NEWSPAPER

While the ministry’s strategy to find affordable advertising avenues, such as digital platforms or public spaces, is defensible from a cost-saving viewpoint, the PPOA Act stated that a “procuring entity shall take such steps as are reasonable to bring the invitation to tender to the attention of those who may wish to submit tenders”.  As stipulated in the old PPOA Act, this was anticipated to be achieved by procuring entities advertising national threshold tenders “at least twice in a newspaper of general nationwide circulation which has been regularly published for at least two years before the date of issue of the advertisement”.

While threshold is captured in somewhat muffled fashion in the GAA regulations, room does exist for flouting this sensible requirement in the zeal to save costs by driving advertising to platforms inaccessible to the general public or those available to only a few people.

OVERSIGHT

What lessons can be learnt from best practice elsewhere? The countries that are considered trendsetters in these respects are Canada, UK, Ireland, New Zealand and Australia. These countries have had government advertising laws for at least over a decade now, potentially providing models that Kenya can borrow from and domesticate.

The implementation of advertising legislation in these countries is, for instance, subject to annual reviews by the equivalent of the Office of the auditor-general. In our case, an advertising Act enacted by Parliament would therefore capture the role of the National Audit Office and auditor-general, an oversight function that is missing in the current GAA set up. The GAA cannot purport to audit its performance.

POLITICS

A key element of government advertising Acts in best-practice jurisdictions is in clearly stating that government advertising should not be used to advance partisan interests, especially those of a political nature. The GAA regulations are silent on this in a country where political party interests are often conflated with state interests. For instance, a review of government advertising during electioneering seasons can show that government advertising ad spends is used to promote the political parties and coalitions in power while dumping down on opposition groups. Borrowing from best-practice jurisdictions, a parliamentary process would ensure the enactment of principles, guidelines and criteria that would clearly define the nature and characteristics of taxpayer-funded advertising.

The relevant sections of the Constitution presuppose an inclusive and self-regulatory mechanism in the composition and operations of the media sector. Indeed, the Marketing Society of Kenya and the Association of Practitioners in Advertising seem to have anticipated the regulations that GAA created by drafting a code of advertising practice and direct marketing in 2003. This led to the creation of the Advertising Standards Body for Kenya and the Advertising Standards Body modelled on the International Code of Advertising Practice.

DISPUTE

Thus, room could be found to appropriate some of the thinking that went into the creation of the Advertising Standards Body. Such an approach would go further to include other stakeholders such as the Media Owners Association, the Public Relations Society of Kenya, Kenya Consumer Federation and others. Similar to the complaints to the complaints commission set up under the Media Council of Kenya Act, a statutory but all-inclusive advertising body would have a dispute resolution mechanism.

Dr Wekesa is a senior lecturer in the Department of Journalism and Media Studies, University of the Witwatersrand, South Africa: [email protected]