ECONOMIC GOVERNANCE WATCH 3/2023
[14th May 2023]
Reversal of Procurement Secrecy Notice : How and Why Was it Published?
There has been a furore over a notice published the Gazette ten days ago in which the President purportedly banned disclosure of information about the Government’s procurement of medicines, equipment and materials for the country’s health institutions. Newspapers called it a “looting notice” and raised fears that it would be used to hide corruption. Veritas commented on the notice in Economic Governance Watch 2/2023 of the 10th May 2023 [link] and said it was ultra vires and contrary to the spirit of the law.
The Secretary for Information defended the notice, tweeting:
“The idea is to disentangle purchases of emergency medical supplies or critical equipment repairs from the long-drawn procurement process.”
However, the Government then purported to withdraw the notice. In a statement the Chief Secretary to the President and Cabinet said:
“Upon further investigations, it has come to light that the so-called Government Gazetted Notice is a nullity, having been published without authorisation, and without the signature of the Chief Secretary to the President and Cabinet, as is the norm.
“While further investigations are underway, Government wishes to advise the public that, on the instruction of His Excellency the President, the document in question has been rescinded as it has no standing at law, in policy and in terms of set Government procedures. It thus should be disregarded.”
Unfortunately the notice cannot be simply disregarded, because until it is formally repealed by another gazetted Notice or set aside by a court it remains the law.
There are also important questions which remain to be answered:
How could the notice have been published without the President knowing about it?
How can the publication of unauthorised notices be prevented in future?
Who was the author of the notice and what was he or she trying to achieve?
Procedure for Publishing Statutory Instruments and Notices
There is a long-standing procedure for publishing statutory instruments and notices in the Gazette:
First, the Ministry or Department which wants the instrument or notice published prepares a draft, following internal procedures for getting authorisation from the Minister or Permanent Secretary.
The draft is then sent to the legislative drafters in the Attorney-General’s Office, who vet it to ensure it is legally valid and correctly drafted. The vetting process may entail the preparation of further drafts and consultations with the Ministry or Department from which the draft originated.
Once the legislative drafters are satisfied that the draft is valid and in proper form, they prepare a hard copy and stamp and initial each page and then return it to the originating Ministry or Department.
The originating Ministry or Department then send the stamped and initialled draft to Printflow, the Government Printer, for publication in the Gazette. The Gazette editor has instructions not to accept drafts for publication unless they have been stamped and initialled.
If these steps are followed, unauthorised or rogue instruments and notices should be detected and stopped before they are published in the Gazette.
Can the Procedure be Improved?
Obviously the procedure has holes, because the rogue procurement notice allegedly slipped undetected into the Gazette. And this is not the first time it has happened: there have been cases in the past when statutory instruments have had to be withdrawn because they were not authorised by the Minister who was supposed to have made them. Also at least one Bill has been published – the Provincial Councils and Administration Amendment Bill of 2021 – which was so badly prepared it can never have been seen by the legislative drafters in the Attorney-General’s Office.
The procedure could be tightened by taking a leaf out of Zambia’s rule book. In that country the Government Printer does not accept draft instruments and notices for publication in the Gazette unless they are signed or initialled by the Minister or other authority responsible for issuing them. If our Gazette editor were to insist on this, so that, in addition to soft copies of instruments and notices, he or she receives hard copies signed or initialled by the responsible Minister and stamped and initialled by a law officer in the Attorney-General’s Office, it would be almost impossible for unauthorised instruments to get into the Gazette.
However, even if the procedure is tightened one rather troubling question remains to be answered.
What Was the Author of the Rogue Notice Trying to Achieve?
According to the Secretary for Information, the purpose of the notice was to avoid long-drawn-out procurement processes for purchases of emergency medical supplies and equipment. This explanation does not hold water.
First, the notice does not circumvent or shorten the procurement procedures laid down in the Public Procurement and Disposal of Public Assets Act; the notice merely prohibits public disclosure of them.
Second, the Act itself, in section 3(7), gives the Procurement Regulatory Authority power, for good cause shown, to exempt any procuring entity from the need to comply with any provision of the Act. So if the Ministry of Health needed to buy medical supplies and equipment urgently it could have approached the Authority for permission to shorten or leave out some of the procedures laid down in the Act.
What then was the notice intended to achieve? It is easy to think of illegitimate objectives – concealing corruption, for instance – but hard to think of legitimate reasons for it. So what was its author thinking when he or she drafted it? And who was the author?
The Chief Secretary’s statement talked of “further investigations” being made into the notice. It is to be hoped that the outcome of the investigations will be made public to reassure Zimbabweans that the notice, though mistakenly published, was intended for a proper purpose and that similar mistakes will not occur again.