Towards Good Governance: an Appraisal of the Role of Article 10 of the Constitution in Implementation of Public Procurement Law in Kenya

Abstract

The promulgation of the 2010 Constitution was a major milestone towards realizing good governance in Kenya. Article 10 of the Constitution outlines national values and principles of governance that ought to permeate public processes in Kenya. Specifically, article 10 enjoins state organs, state officers, public officers and every other person to comply with national values whenever any of them is applying or interpreting the Constitution, enacting, applying or interpreting any law or when making or implementing public policy decisions. To institutionalize good governance in public purchasing, the Public Procurement and Asset Disposal Act, 2015 expressly requires that national values guide public procurement in Kenya. Although the provision in the 2015 Procurement Act is arguably unnecessary, it is an indication of Kenya’s aspirations for good governance in public procurement which has been stifled by endemic graft. Although the enactment of article 10 of the 2010 Constitution heralded a new governance order in public administration generally, corruption remains stubbornly entrenched in public procurement in Kenya. The rampant corruption that characterizes public procurement in Kenya demonstrates the dominance of values that are not in harmony with those outlined in article 10. The central question guiding this study is why the enactment of article 10 has failed to eradicate corruption and other related problems in public tendering in Kenya. The study critically examines the challenges hindering the realization of article 10 in public procurement decision-making in Kenya. The study focuses on the statutory and institutional challenges that have impeded the implementation of article 10 in public procurement in Kenya. The study also recommends mechanisms to entrench and enhance NVPG in public procurement processes in Kenya. Ten years since the promulgation of the Constitution, little academic effort has been deployed towards interrogating why article 10 has failed to forestall corruption and other types of malfeasance in public procurement. Thus, this study makes a beneficial contribution to the existing body of knowledge. Addressing the challenges facing the entrenchment of article 10 in public procurement processes will be beneficial in tackling corruption and other associated problems in public procurement in Kenya. The study utilizes doctrinal research methodology.