Regulation of public procurement in Zimbabwe : an analysis of its international obligations

Abstract

The adoption of the new constitution in 2013 led to the constitutionalisation of public procurement in Zimbabwe. The Constitution is the principal source of law in Zimbabwe. This set in motion a series of legislative reforms to realign public procurement with con-stitutional prescriptions. The principal objective of the study was to establish whether Zimbabwe’s procurement regulatory framework complies with what is set out in section 315(1) as read together with section 195(2) of the Constitution. The preceding constitu-tional provisions outline the six constitutional principles anchoring public procurement. These principles are mentioned hereunder as follows: a. Openness; b. Honesty; c. Cost-effectiveness; d. Fairness; e. Competitiveness; and f. Transparency To pass constitutional muster, public procurement legislation must crisply flesh out the aforementioned principles. Public procurement legislative framework is extensively cod-ified in the Public Procurement and Disposal of Public Assets Act 5 of 2017. This Act is integrated with the Public Finance Management Act 11 of 2009. Noticeably, some of segments of Public Procurement and Disposal of Public Assets Act are bent on using public procurement to achieve socio-economic ends. Though the public procurement reg-ulatory legislation is far from being perfect, this study has shown that the procurement regulatory legislation conforms to constitutional dictates. However, the operationalisa-tion of this policy still remains haphazard. The legislative hindrance to the realisation of the procurement regime articulated in the Constitution is discussed in this thesis. The secondary objective of this research is to measure the degree to which Zimbabwe’s public procurement regime conforms to COMESA Public Procurement Regulations. Simply, this entails comparing Zimbabwe’s public procurement regulatory framework with the COMESA Public Procurement Regulations. In crafting this segment of the study, the researcher was guided by the fact that Public Procurement Regulations are binding on member states. Public Procurement Regulations are guided by the following principles: a. competition and openness in public procurement proceedings; b. fairness; c. transparency, including disclosure of all relevant information for participation in, and oversight over, public procurement; d. accountability; and e. value for money. To operationalise Public Procurement Regulations, member states are required to ensure that the public procurement laws incorporate the aforementioned principles. In addition, it is also necessary for member states to designate financial thresholds for regional com-petitive bidding for suppliers operating in COMESA region. The thesis reveals that Zim-babwe’s public procurement regulatory framework compares favourably to COMESA Public Procurement Regulations. The study concludes the discussion on the comparative analysis by recommending legis-lative changes to public procurement law in Zimbabwe. These amendments will facilitate the participation of suppliers from within the COMESA region. At present, Zimbabwean public procurement law does not distinguish between suppliers from a non-COMESA member state and COMESA member states. The domestication of the missing compo-nents of the Public Procurement Regulations will permit Zimbabwe to meet its interna-tional law obligations as enshrined in the COMESA Treaty.