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SENATE HANSARD 04 April 2017 26-46
PARLIAMENT OF ZIMBABWE
Tuesday, 4th April, 2017
The Senate met at Half-past Two o’clock p.m.
(THE HON. DEPUTY PRESIDENT OF THE SENATE in the
BUSINESS OF THE HOUSE
THE DEPUTY MINISTER OF MEDIA, INFORMATION
AND BROADCASTING SERVICES (HON. SEN. MATHUTHU):
Mr. President, I move that Order of the Day, Number 1 on today’s Order Paper be stood over, until the rest of the Orders of the Day have been disposed of.
Motion put and agreed to.
CONSIDERATION OF THE ADVERSE REPORT BY THE
PARLIAMENTARY LEGAL COMMITTEE ON THE LAND
COMMISSION BILL [H.B. 2A, 2016]
Second Order read: Committee Stage: Consideration of the Adverse Report by the Parliamentary Legal Committee on the Land
Commission Bill [H.B. 2A, 2016].
House in Committee.
HON. SAMUKANGE: Thank you Madam Chairperson. I must start by introducing myself. I am Hon. Jonathan Samukange, Member of Parliament for Mudzi South and I am the Chairperson of the Parliamentary Legal Committee. The Parliamentary Legal Committee, just for your information, consists of five senior lawyers. Previously, I indicated that when we take into account the number of service, it is slightly over 100 years of service. For example, I have been in practice for about 40 years.
The Parliamentary Legal Committee considered the amendment to the Land Commission Bill [H. B. 2A, 2016]. After its serious consideration, our main task as the Parliamentary Legal Committee is to consider whether the Bill is consistent with the Constitution; that is the main consideration that we take into account when we deliberate on any Bill or Statutory Instrument that has been presented to us. I believe that all the Hon. Senators have our report before you.
I will begin by stating that Section 152 (3) of the Constitution states that the Parliamentary Legal Committee must examine;
- every Bill other than a Constitutional Bill, before it receives the final vote in the Senate or in the National Assembly;
- any Bill which has been amended after being examined by the Committee, before the Bill receives its final vote in the
Senate or the National assembly;
Further, Section 324 of the Constitution provides for the diligent performance of the constitutional obligations according to the
Parliamentary Legal Committee here-in-after referred to as the Committee; diligently and without delay performed its constitutional role or obligation.
For the above mentioned reasons, the Committee on the 30th March, 2017 at 1010 hours met to consider the Notice of Amendment to the Land Commission Bill [H. B. 2, 2016]. After deliberations on the amendments proposed, the Committee unanimously resolved that an adverse report be issued in respect of the notice of amendments, due to the following considerations:-
- the Constitution clearly reiterates the jurisdiction of the traditional leaders, in particular Section 282 (1) (d) which states, “ traditional leaders have the following functions within their areas of jurisdiction – “in accordance with an Act of Parliament, to administer communal land and to protect the environment”. I must emphasise that traditional leaders have the jurisdiction. In other words, the obligation to administer communal and the inhabitants that are found in that communal land.
- Section 282 (2) of the Constitution states, “except as provided in an Act of Parliament, traditional leaders have authority, jurisdiction and control over communal land or other areas of which they have been appointed, and over persons within those communal lands or areas. It is patently clear where the role of the traditional leaders lies when it comes to the land in Zimbabwe and that is with the communal land.
- Subsection 72 of the Constitution defines agricultural land as follows, “land used or suitable for aquaculture, that is to say for horticulture, viticulture, forestry or aquaculture or for any purpose of husbandry”, but does not include communal land. This is further illustrated by Section 288 which refers to the definition as stated in subsection 72. The definition of agricultural land clearly excludes communal land. This was done in order to clearly define the roles of the two constitutional bodies, that is the Land Commission and the traditional leaders.
- Section 297 (1) (a) of the Constitution states that, “the Zimbabwe Land Commission must ensure accountability, fairness and transparency in the administration of agricultural land that is vested in the State”. Having considered the above provisions of the Constitution, the Committee was of the opinion that the amendments proposed to the Land Commission Bill were ultra vires the Constitution. The role of the Land Commission are manifestly clear as are the roles of the traditional leaders and the two are not expected to interact at any point. Had that been the intention, it would have been clearly spelt out in the Constitution.
For the avoidance of doubt, it is the Committee’s view that the Commission has jurisdiction over agricultural land which traditional leaders have no authority, jurisdiction and control over communal land or other areas for which they have been appointed, noting that the definition of agricultural land in Section 72 excludes communal land, thus rendering the proposed amendment unconstitutional. That is the
Report from the Parliamentary Legal Committee.
It is our view that the Constitution makes it very clear that it defines what is the communal land, defines who are the authorities in the communal land and the authorities in the communal land are traditional leaders, commonly known as chiefs, assisted by headmen and sabhukus. On the other hand, we have agricultural land which the Bill seeks to be administered by the Land Commission, separating the two.
To try to have the two interact can cause untold problems. Apart from that, the Constitution itself makes it clear. It is my submission that unless the Constitution has been amended, the proposed amendments to the Land Commission will violate the Constitution and become unconstitutional. As I have indicated, it will be ultra vires. I urge the Senators to seriously consider the Report. I thank you.
HON. SEN. MUMVURI: On a point of order. Madam President, I am of the view that we defer the debate until tomorrow because we have just got the Report now. We want to discuss it as a House and come back and debate from an informed position. I thank you.
Committee to resume: Wednesday, 5th April, 2017.
STATE OF THE NATION ADDRESS BY HIS EXCELLENCY
Third Order read: Adjourned debate on motion in reply to the State of the Nation Address.
Question again proposed.
HON. SEN. CHIPANGA: I move that the debate do now adjourn.
HON. SEN. MARAVA: I second.
Motion put and agreed to.
Debate to resume: Wednesday, 5th April, 2017.
PRESIDENTIAL SPEECH: DEBATE ON ADDRESS
Fourth Order read: Adjourned debate on motion in reply to the Presidential Speech.
Question again proposed.
HON. SEN. NYAMBUYA: I move that the debate do now
HON. SEN. CHIMHINI: I second.
Motion put and agreed to.
Debate to resume: Wednesday, 5th April, 2017.
ENFORCEMENT OF LAWS TO PROTECT DOMESTIC
Fifth Order read: Adjourned debate on motion on stray dogs and other domestic animals.
Question again proposed.
+HON. SEN. MASUKU: Thank you Mr. President for giving me this opportunity to debate. I would like to thank Hon. Sen. Mawire for bringing up this important motion in this august House about stray dogs and other animals.
There are many diseases that are found in animals and these affect people and they are difficult to treat. Such diseases are also found on dogs. Dogs sometimes have anthrax. Usually affected dogs will have a lot of saliva dripping out of their mouths and moving around as if they do not belong to anyone. Such dogs have owners but the owners are not responsible. If such dogs bite an animal, that particular animal should not be consumed. If it is consumed, the disease that was in the dog will be passed on to human beings. We hear that in such and such a district there is anthrax which is caused by these stray dogs.
It is important that Government should look into that so that stray dogs should be confined in a particular place. If they are confined, there is need for resources to cater for the dogs. As owners of animals, we should not increase responsibility on Government by failing to look after our own animals. It becomes very difficult. It is better that stray
animals be killed so that people and other animals can be protected from diseases.
Some other stray animals on the roads are causing road carnage. You find cattle, goats and sheep along the roads. One wonders what has happened to our tradition of herding animals. I am sure all the people who grew up during my time know how to herd. What has caused people not to herd their animals now? The Government has started to protect some roads, particularly Bulawayo roads. In some places where people have been hurt or killed in road accidents, the Government has erected fences to protect animals from straying onto the roads.
What is disappointing is these fences are being vandalised by people, not animals. You will find that the fences have been removed and taken to their people’s to protect their gardens and yards, forgetting that the fence was put there to protect their own animals and their own lives. It is important Mr. President that in any district or place where there are fences, people in that area should know that the fences should remain intact.
Again, what I have observed is even if the fence is there, some people do not close gates. As a result, beasts end up on the roads and cause a lot of carnage. Such kind of behaviour defeats the purpose of putting up that fence. It is the responsibility of the people in the area to ensure that gates are closed for their own protection. We also have wild animals which are dangerous; people forget that. These wild animals end up entering their homes and they will be in danger. The problem with people is that they realise the danger after something bad has already happened. You will realise that when a beast has caused an accident, no one will accept ownership of that beast. It will decay there, but lives of people would have been lost.
Residents of these areas should also realise that when they have animals like dogs, cows or whatever, they should take charge by looking after their animals. This will also protect their animals against diseases if they remain in their own designated areas. This should be a lesson to youngsters so that they grow up knowing that owning an animal means responsibility, you do not have to leave it to go wherever. Animals need care, you do not have to let them roam without anyone managing its movements. If someone does that, it means that person is not responsible enough.
With those few words, I would like to support this motion which was raised by Hon. Sen. Mawire. Let us look after our domestic animals so as to prevent carnage and prevent spread of diseases when animals mix with other animals from affected areas. I thank you.
Hon Sen. Musaka having stood to debate after the Hon. Deputy
President had named Hon. Sen. Mawire to adjourn the debate.
THE HON. DEPUTY PRESIDENT OF THE SENATE: Hon.
Sen. Musaka, I wanted to give the chance to the Minister of Finance and Economic Development to come back to the First Order of the Day.
HON. SEN. MAWIRE: I move that the debate do now adjourn.
HON. SEN. MARAVA: I second.
Motion put and agreed to.
Debate to resume: Wednesday, 5th April, 2017.
BUSINESS OF THE HOUSE
THE MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT (HON. CHINAMASA): Mr. President Sir, I
move that the House revert to Order Number 1 on today’s Order Paper.
Motion put and agreed to.
SECOND READING: PUBLIC PROCUREMENT AND
DISPOSAL OF ASSETS BILL (H. B. 5A, 2016)
First Order read: Second Reading: Public Procurement and
Disposal of Assets Bill (H. B. 5A, 2016).
THE MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT (HON. CHINAMASA): Mr. President, it is my
singular honour to move that the Public Procurement and Disposal of
Public Assets Bill, [H.B. 5A, 2016] be read a second time.
In line with the provisions of Section 315 of the Constitution of Zimbabwe, the Public Procurement and Disposal of Public Assets Bill seeks to fundamentally reorganise the way in which procuring entitles such as Government Ministries, parastatals and local authorities acquire goods, services, works, joint ventures and consultancy services from bidding institutions.
In the current challenging economic environment, ensuring efficiency and integrity in public procurement system is essential to ensuring sound public delivery and maintaining citizens’ trust in Government. In order to achieve this, there is need to professionalise and modernise the procurement systems in the country. Mr. President, there is need for Government to tap into the potential of procurement as a strategic policy lever to advance socio-economic objectives which can only be achieved by reviewing the legislative and institutional architecture for the national procurement system.
Mr. President, fostering institutional responsibility and personal accountability in the public sector will help stimulate a healthy business environment and promoting innovation and fair competition.
The Bill will transform the State Procurement Board into a new, non-executive procurement authority tasked solely with providing a regulatory and oversight role as well as setting standards, guidelines and monitoring compliance, thus leading to a separation of the regulatory and operational functions.
The Bill will introduce the ‘Procurement Regulatory Authority’ responsible for setting public procurement standards, regulating, monitoring and evaluating procurement activities which are conducted by procuring entities. Mr. President, the Bill will devolve procurement decision making to procuring entities and set out the procedures to be followed and the steps to be taken in procurement proceedings to ensure fairness and transparency.
Mr. President Sir, some of the key objectives of the Bill seek to achieve the following:
- it seeks to promote competition among bidders;
- it seeks to provide fair and equitable treatment of bidders which will eventually culminate in value for money procurement;
- The amendment seeks to ensure that all public procurement is conducted in a transparent way and finally, and most importantly;
- The amendment seeks to provide the general public with the satisfaction that contract awards follow a fair and transparent process.
With respect to key provisions of the Bill:
Mr. President Sir, I will now outline some of these key provisions of the Public Procurement and Disposal of Public Assets Bill.
- Clause 3 (1) deals with application of the Act in terms of which it shall apply to all stages of the process of the procurement of goods, construction works, services by procuring entities and the disposal of public assets by procuring entities.
- Clause 3 (3) deals with that which the Act will not apply to and sets out the relevant services and contracts to which it is inapplicable and provides for procurement by diplomatic or consular missions outside Zimbabwe.
- Clause 3 (6) provides for defence procurement and procurement related to public security or the national interest.
- Mr. President Sir, the objectives of the Act are set out in Clause
4 and include:-
Clause 4 (1) (a) ensuring that procurement is effected in a manner that is transparent, fair, honesty, cost effective and competitive;
Clause 4 (1) (b) Promotion of competition among bidders;
Clause 4 (1) (c) Fair and equitable treatment of bidders to achieve value for money procurement;
Clause 4 (1) (d) promote integrity of, and fairness and public confidence in procurement processes.
- Mr. President Sir, Clause 5 of the Bill establishes the Procurement Regulatory Authority of Zimbabwe whilst Clause 6 provides for functions of the Authority which will include:-
Clause 6 (1) (b) Monitoring and supervision of public procurement systems in procuring entities;
Clause 6 (1) (c-d) issuing technical guidelines and preparing standard documents and templates to be used in connection with public procurement;
Clause 6 (1) (e) developing a framework for e-procurement;
Clause 6 (1) (h) promoting public procurement capacity building;
Clause 6 (1) (k) referring contraventions to appropriate enforcement agencies
Clause 6 (11) Establishment and implementation of an independent review mechanism.
- President Sir, the powers of the authority are set out in Clause 7 of the Bill and these include the power to issue directions of a general nature to procuring entities regarding the manner in which they are to conduct procurement proceedings.
- In terms of Clause 8 of the Bill, the operations of the Authority shall be managed by a board consisting of seven or nine members chosen for their knowledge and experience in procurement, law, management, engineering and other relevant disciplines. Clause 11 provides for reports to be produced by the Authority.
- President Sir, Part III of the Bill deals with responsibility for procurement and Clause 14 decentralises procurement to procuring entities by delegation of the activity to accounting officers that is in
(Clause 14 (2) and members of the entity’s procurement management unit.
- In terms of Clause 15 of the Bill, procuring entities require authorisation to conduct procurement and where a procuring entity fails to obtain authorisation, the Authority may authorise another procuring entity to conduct such procurement on its behalf. Clause 19 provides for shared procurement amongst procuring entities.
- President Sir, Part IV of the Bill deals with procurement preparation and planning and in terms of Clause 20; a procuring management unit shall use only the standard bidding documents produced by the Authority.
- In terms of Clause 20 (2), a procuring entity shall ensure that before initiating procurement proceedings, adequate funds have been budgeted and allocated to the procurement;
- In terms of Clause 22, for each financial year, a procuring entity shall prepare a procurement plan.
- Clause 26 provides for a procuring entity to conduct market consultations; with a view to preparing contract specifications and informing potential bidders of the entity’s procurement plans and requirements.
- Clauses 27 – 29 deal with technical requirements and qualification of bidders whilst Clauses 30 – 34 provide for methods of procurement.
- Procedures for competitive bidding and restricted bidding are provided for in Clauses 35 to 56. Clause 55 provides for contract award in terms of which a procuring entity, having evaluated the bids, shall award the procurement contract to the bidder that submitted the lowest bid which meets the price and non-price criteria set out in bidding documents or offers the most economically advantageous tender.
- Clauses 57 to 66 provide for procurement of consultancy services.
- President Sir, Part IX of the Bill provides for transparency and integrity and in Clause 66, it also provides for information to be provided to rejected bidders and Clause 68 provides for notification of a contract award which shall be published on the website of the Authority.
- President Sir, Part X of the Bill deals with challenges to procurement proceedings and in Clause 74, provision is made for application to review by a review panel. Clause 75 provides for the appointment of review panels and how they shall be composed. Appeals against the decision of a review panel lie in the Administrative Court.
- Clause 79 places the responsibility for contract management of the procuring entity.
- President, Clause 84 of the Bill requires that where the procurement consists of goods or construction works, a procurement contract shall give the procuring entity the right to inspect the procurement requirement before accepting it and all reasonable times to observe and inspect the manufacturer of the goods or the progress of the construction works.
- Clauses 90 – 94 provide for disposal of public assets, with Clause 92 outlining the disposal procedure to be adopted whenever an asset becomes unserviceable, obsolete or surplus.
- Part XIII of the Bill provides for investigations by the Authority. Clause 96 provides for appointment of an investigator by the Authority and in Clause 97, the powers of an investigator.
- President, Clause 99 empowers the Authority to declare a person ineligible to be awarded a procurement contract if the person has been convicted of an offence under the Act or the Prevention of Corruption Act in respect of any procurement proceedings or if any procurement contract between a procuring entity and a contractor has been cancelled or otherwise terminated on account of fraud or persistent underperformance or non-performance of the contract.
Mr. President Sir, with this presentation, it is now my honour and pleasure to move that the Public Procurement and Disposal of Public Assets Bill, [H.B.5A, 2016] be now read a second time. Thank you.
HON. SEN. NYAMBUYA: Thank you Mr. President. I rise to say just a few words in support of the Bill. I read this Bill and from my experience as a civil servant and also as a Minister, I think this is a very big move towards getting it right in terms of procurement. Any procurement system must have a number of key tenets to it which are sustainable. Some of them include timeliness. We are talking of taxpayers’ money and value for money to ensure that State resources are not wasted. We are talking of the need for transparency so as to reduce underhand dealings and corruption. We are also talking of fairness to the bidders. In my view, any system which passes this scrutiny is a system which is going to be sustainable.
The current system, it is well known, had promoted what was now known as ‘tenderpreneurs’; people who were specialising in just submitting tenders, winning them but they have no capacity to supply Government with resources or services which have been tendered for, thereby increasing the cost of doing business and sustaining a system which was to a very large extent corrupt. The current system was also long, there were too many delays and it gave room for malpractices. I therefore welcome this proposed Bill which is fairly devolved and has got a board from what the Minister has described, which is going to ensure that there are checks and balances.
Mr. President, I also welcome the fact that this Bill is going to have some enhanced guidelines in terms of how State assets are disposed of. In some cases, there are so many damaged, unused redundant assets, which are lying in yards and all over the show which are better disposed of. Revenue is raised and then we try and get it right in terms of getting equipment which is necessary for that organisation.
I therefore would like to commend the Minister for doing a good job and bringing to this House a well thought out Bill, which in my view is going to add value to Government. I thank you Mr. President.
HON. SEN. MARAVA: Thank you Mr. President. I also rise to support this Bill because it seems like it has got enough benchmarks that if utilised properly will enhance the wealth of the country. However, there is only one snag that I would like to seek for further education. While understanding that Clause 99 is in place to guard against corruption, I seek further education because we may fall into a trap.
This Bill is now a non-Executive Bill.
I wish the Minister could educates us as to which further areas are well looked after because the greatest enermy that has always haunted this country is corruption. I am not seeing enough preparedness of the Bill to fight corruption. It can easily be another snag which has not been fully considered. Otherwise, challenges for procurement proceedings, I think they are well covered in the document. I thank you.
HON. SEN. KHUMALO: Thank you Mr. President. My
discussion is very short. It is an issue on centralisation. When I worked for the Government, everything is centralised. You find that equipment is needed but the peripheral people, where the equipment is going are not involved. As a result, they end up with equipment which cannot fit into their rooms or is not the right one they wanted. I wish the provincial or the district people who are the users of the equipment become involved so that we do not end up with equipment which is procured but lies around because it is not fit for the use.
HON. SEN. MUSAKA: Thank you Mr. President. I also rise to congratulate the Minister for the Bill. Like Hon. Sen. Marava said, I seek clarity on the non-executive nature of it. However, listening very carefully to what he was reading out, if this is the process of fighting corruption, here it is. Really, the system was incompetent. The Minister himself is admitting, he gave that kind of indication that things were not right. Now that the Minister has come up to fight against corruption, I congratulate him. Thank you.
HON. SEN. MLOTSHWA: Thank you Mr. President. I rise also to welcome the move by the Minister to bring this Bill to this House. I also want to touch on corruption Hon. Minister. You said Part 9 deals with transparency, I want further clarity because in all the good things that have been brought here and that is in all our papers that we have agreed to, the only snag is the corruption issue. We have seen and witnessed so many-a- time when those that are supposed to investigate are being blocked by the Executive, especially when they feel that they need to protect a certain individual. So, we want assurance that the Bill will not be tempered with. Also, that the powers of the investigator are not belittled because if you put somebody and say use this paper, do this job and at the same time say do not do it, it then becomes a problem. So, I want to know how much protection we have for the investigator because we can never deal with corruption if those that are supposed to investigate are not protected.
Hon. Minister, I also need some clarity on the Procurement Board because we need to have people that will make sure that we push for the benefit of the country and everybody and not just for the benefit of individuals. Let me give you a case that always haunts me. I saw an excavator at Matopo and the people were trying to grade the road. I asked why they were failing to do so and they told me that the excavator was meant for places where you push ice and not soil. So, when procurement is done, people must know what they are procuring because we never have ice here in Zimbabwe. Why then would anyone procure excavators that are used to push ice?
*HON. SEN. CHIMHINI: Thank you Mr. President. I also rise to make my contributions on this Bill. First, we know that we already have a Procurement Act in place but the problem was with the officers who were implementing this Bill because they were taking it as their own business. There was corruption and they would benefit a lot from the procurement processes. So, I hope that this new Bill is going to remove all those anomalies. Also, the sentences to be meted out to accused corrupt people will serve as an example to other people that if they break the law, they are going to be persecuted and be given tough sentences. We also need to know that if anybody has benefitted from these corrupt activities, the goods or whatever was acquired through corrupt activities should be confisticated to the State. We hope that this Bill is going to take care of the briefcase sales persons and fly-by-night suppliers who just appear and win tenders yet they do not have the capacity to supply. In most cases this is done in connivance with the procurement officers. This was one of the problems which was letting down the wealth of the country because of corruption. We only hope that this is going to be removed forever.
HON. SEN. B. SIBANDA: In congratulating the Minister on this
Bill, I want to make certain observations. In the Minister’s presentation, the word ‘transparency’ has come out strongly in several places and in my opinion, that is very important. It is apparent that the repetition is designed to treat some mischief and I implore the Minister to ensure from now on that the mischief is treated without reservation, because our experience seems to be that there is not adequate application of the law even where the law exists. We would like that law to be applied without fear or favour. Secondly, the ability and responsiveness of the
Procurement Authority, justice delayed is justice denied. It is quite often that cases go on reported and they go on and on until we lose interest. Can we ensure that justice is not delayed? The Minister also makes a point about censure from deviation from standards. Minister, we implore you that once again the censure should be thorough and immediate. You have also made reference to a contract review panel. That is important but what I might have missed is, at what stage the potential contract or the actual contract is reviewed. Is it an ongoing process during the tender process or is it after the contract has been awarded?
Another comment is on the disposal of public assets. You can simply observe that a number of Government departments have been turned into junk yards full of junk. Often times I am sure that first, there has been extreme negligence in cases where things are not sold at the end of their life time but they are just forgotten. Last but not least, I want to make the observation that good legislation is as good as it is implemented and therefore Minister, I beg you to make sure that your good effort is not turned to waste by neglect.
HON. SEN. MAKORE: I also stand to thank the Minister for bringing this very important Procurement and Disposal of Assets Bill to this House. He has been thanked enough in terms of contributions by Senators but I wish to add a few words to this particular Bill because we have had quite a number of boards that were introduced but without
It is my wish that as you stated that you are seeking fairness and transparency in all these procurement operations, it is so much onerous save to say the agencies that are within this particular Bill that you are going to deal with has to be so strict because sometimes you put a boil on top of the other boil and the ultimate experience is that the result becomes conclusively itchy to the nation and without any advantages.
The element of monitoring and supervision is very important to this particular nation. It has become a culture – this is why Hon. Senators are wailing in terms of experiencing corruption. Corruption is cancerous in the country and it has become a culture which is difficult to treat as was mentioned by the last speaker, Hon. Sibanda.
That you have made an attempt to put something is so much respectful and that step for which you are seeking for standards to be set in terms of expected supervision and mechanisms is so much important to me. We are of the view that this Bill is very important. It is a step despite that it exists as law such as was mentioned here but without effect. Perhaps, now you are putting more teeth to it so that it becomes much more effective. Mr. President, I would not have been fair if I had not stood up to say such few words in support of the Bill. Thank you very much.
+HON. A. SIBANDA: Thank you Mr. President. We thank Hon. Chinamasa for bringing this Bill. We have debated and the Bill is important. My wish is that there should be serious supervision because things stay for long without there being any ownership. The other thing is that those who will be responsible for procurement should not rush into buying things that are substandard because they are cheap but will fail to deliver as per the country’s expectation. We request that there be serious supervision particularly to curb corruption.
We wish Hon. Minister to hear you saying, I have caught some of the people who are corrupt. Do not be afraid Hon. Minister to come here on your own and tell us the thieves. We do not want corruption in Zimbabwe because it is a bad sin and it is only one person who wants to own everything. We therefore request that there be supervision, Hon.
Minister. Thank you very much.
THE MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT (HON. CHINAMASA): I want Mr. President to
thank all Hon. Senators who have contributed and given me their overwhelming support for this piece of legislation. I also want to say that all of you who have contributed and those who have not, I think do recognise that this is a very important piece of legislation – [HON. SENATORS: Hear, hear.] – Why do I say it is a very important piece of legislation? It is because any entity, no matter what its size is cannot run without procurement. So, it is very important that we recognise this fact.
The other issue also which has come out generally from the contributions and which has been recognised is that we are moving away from the current system which was centralised. All procurement by Bulawayo Municipality or parastatals wherever they are was done through the State Procurement Board, a situation which rendered the system unviable, lack the transparency that we all have spoken about. There were a lot of delays in the procurement and delays meant that even the end cost became even beyond measure just because of the delays. Therefore, it introduced and almost nationalised inefficiency in the way that entities were run and conducted. So, this amendment is to decentralise.
First, what used to be the State Procurement Board will now have the name ‘Regulatory Authority’. It will no longer be in charge of procurement. The procurement will be done and decentralised to procurement entities. In this case, in each line Ministry there will be a Procurement Unit to procure for that ministry. In each municipality, they will set up a Procurement Unit and in each parastatal, the same thing. The Regulatory Authority is going to be responsible for setting standards and guidelines to be followed and complied by all procurement entities. It will also supervise what they do and assess their capacity. If a procurement authority has no capacity, it will not be allowed to procure until that capacity is created and established.
Also, the Bill provides for collective procurement of different procurement authorities if the economies of scale will bring the cost of procurement down. Where there is no capacity from any procurement authority, the Regulatory Authority may direct that the procurement for that procurement authority be done by a different procurement authority.
All that I think is going to be a very positive improvement on the way we have been doing things.
What I want Hon. Senators to take note is that clearly we have been alleging corruption on the part of the State Procurement Board. Right now, it is like we are devolving that problem. It has to be appreciated. We are devolving that problem to the procurement authorities. Corruption will not go away because corruption is committed by human beings. What I think is important is that there will be accountability at the local level. People will know what their municipalities are procuring, the cost and that is the whole purpose of our councillors and also, of our rate payers in the case of municipalities. So, the corruption will not go away. What I think is important is that because of the devolution of the functions, there should be greater efficiency, accountability and transparency - that is our expectation.
As I have always said when the subject of corruption is brought up, corruption is a different kind of crime because the briber and the bribed have both benefitted. So, you do not expect any of the two to talk or report to the police. Most of the time we only understand, appreciate or get to know that corruption has taken place after the horse has bolted and we are lucky to find out which horse it was. What I think is important for me for prevention of corruption is to set up a system that will prevent corruption and deter any person who may want to commit corruption.
That basically is what this Bill is about.
The whole functions of the Regulatory Authority are centered on norm and standard setting, guidelines, overseeing and monitoring whether things are being done in terms of the guidelines. If those systems are followed and complied with, it should go quite a long way to prevent the occurrence of corruption. I hope that it will happen as it is being envisaged. Let me come to the specific contributions.
I thank Hon. Sen. Nyambuya. It looks like he was in the procurement department, wherever he worked before. The clarity is very clear about the abuses and shortcomings of our current procurement system. I support him fully on all the things that he has said. The fact that it was decentralised, meant that there were long delays and long delays meant inefficiency in the procurement entities. I thank you very much for your clarity of thoughts on the issue of procurement.
Hon. Sen. Marava, I think I have already responded with respect to the subject of corruption. Let us not wait until it has happened. Let us introduce systems to make sure it does not happen or when it happens, the system should be able to tell us who did it. Generally, you will find those who indulge in corruption, at whatever level, the first port of call is to destroy the systems. Once you are in an organisation and systems are destroyed, it makes all of you suspects and you are not able to pin point who has done it because there were no systems. Generally, you will find that those who commit corruption, their first attempt is to destroy the systems and at the end it can be free for all. Once it is free for all, it could have been you or them, it cannot be established and those who have done it will probably complain the most so that they distract attention from themselves.
Hon. Sen. Khumalo, thank you very much. I thought you had missed the point. With this legislation, there will no longer be centralisation. We are decentralising to procurement entities. Where you should keep an eye on is on the procurement entities, if we are to mention for example, the Bulawayo City Council. If anything goes wrong at the Bulawayo City Council, they should train the people and set up the procurement unit of properly trained people so that when they procure, they give value to the organisation.
Hon. Sen. Musaka, thank you very much. I think you raised once again the issue of corruption and I think I have adequately covered my thoughts on this subject matter. Hon. Sen. Mlotshwa, there will always be interference. Interference is a form of corruption. What is important is to ensure that whenever there is interference, someone can detect it when in fact it is perpetrated. Otherwise, we cannot say there will be no interference or there will be no corruption. What is important is to set up systems. Whoever is manipulated should be prepared to pay the prize. If you agree to be manipulated and the system exposes you to have been the one responsible, we will not listen to excuses that I was phoned by so and so to do a, b and c. Why did you agree? The blame must lie squarely on the person who is managing the systems.
The example you gave, for instance, of excavator being suitable for countries with ice, it is again either corruption and sometimes not necessarily, it could be lack of capacity. They know they want an excavator but they do not know how to assess one that is suitable for their purposes. It could be tractors for instance, generally those who are the suppliers use all sorts of gimmicks, including a low price. They offer that excavator at a low price and it becomes an attraction and the organisation without batting an eye, they go for that purchase. Later, they find that the tractor that they bought at a very good price has a heater under the seat and the driver cannot drive until the heater is removed. Probably part of cost was the fact that it was fitted with a heater.
Hon. Sen. Chimhini, thank you very much. The sanctions are there, apart from reporting to law enforcement agencies. Some of the sanctions, like I pointed out in my Second Reading speech, include outlawing that person from tendering in future. For those who know, it could be a very heavy punishment. Sometimes they mutate and end up tendering under a different name and so on. That is something the regulatory authority will have to come up guidelines, how you can identify people who are briefcase companies. It is very important also that some of the guidelines should guide the procurement authorities to the extent possible, to avoid middle people.
Obviously, if the qualities are too small, you cannot sometimes avoid middle people but if the quantities are huge go to the manufacturer and obtain your requirements from them to avoid the mark ups that arise as a result of having so many middle people.
Hon. Sen. Sibanda, thank you very much. Again, I agree with you the importance of transparency and about systems like I pointed out. What is important here are the systems. I also agree with you that decisions on procurement should be taken expeditiously and if there are any cases of malpractices, they should be exposed expeditiously. If there are any censures, they should be meted out and any penalties meted out nearer to the commission of the crime and not further away when people have forgotten what the punishment is about.
The review panel is after the award. We have started using it in terms of our procurement. We have resorted - in order to understand some of the prices especially, the multi-million dollar prices. We have resorted to employing a consultant who is skilled in that sector. Let us say it is an energy contract, several millions – as lay people we may not quite understand the items that are involved in the bill of quantities and we have resorted to employing a consultant to comb through the bill of quantities. Sometimes what the suppliers do, they repeat some of the items because all they want is to make money. An item which is just one, they can have it three or four times repeated and charging the same amount.
We have had cases where, through the use of the consultant, we have reduced the contract price quite appreciably and saving some millions in the process. The contract review panel is to assist in doing that. I have taken to heart the issue about disposal of public assets, especially that we have created junk yards of obsolete equipment. That equipment should be disposed of urgently and we should have a policy. We are formulating a policy in the Ministry already on disposal. It was when we originally drafted this Bill, that portion of disposal was not part of the Bill.
The Ministry of Finance and Economic Development had to insist that we incorporate how we dispose of public assets, the procedures to be followed and so on and so forth. I know there is something in the manuals of the Accountant General but we want to incorporate it into legislation. I also agree that any good legislation is as good as it is implemented. We hope that there will be improvement on our implementation.
Thank you very much Senator Makore for your support. I also want to say to Senator Sibanda, I thank you and appreciate your point that there is need for supervision of the procurement process to avoid importation of cheap imports, especially by procuring entities. This will be done and I am sure that we will not be able to have this problem in the future. Of course, thieves must be exposed. It is very important. Whenever there is any deviation from the rules, whether there is any suspicion of corruption, it think those issues should be investigated very quickly.
With these remarks Mr. President Sir, I now move that the Public Procurement and Disposal of Public Assets Bill [H. B. 5A, 2016] be now read a Second time.
Motion put and agreed to.
Bill read a second time.
Committee Stage: With leave, forthwith.
PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC
ASSETS BILL [H. B. 5A, 2016]
House in Committee.
Clauses 1 and 2 put and agreed to.
HON. SEN. MLOTSHWA: On a point of order, this may not be the right time but we realise that every time a Bill comes to the House, we will not be having copies at hand because we do not know when the Minister is coming -[HON. SENATORS: Inaudible interjections]- Please can you give me the opportunity to speak. I am saying we were given the Bill but we did not know the date when the Minister was coming. That is my point. It is important that we know the date the Minister is coming, unless if the Minister only tells the other side because if you are saying I am wrong, it means you knew that he was coming today
THE CHAIRPERSON OF COMMITTEES (HON. SEN.
MASUKU): Thank you Hon. Member, that is noted.
Clauses 3 to 106, put and agreed to.
First, Second and Third Schedules put and agreed to.
Bill reported without amendments.
Third Reading: With leave, forthwith.
PUBLIC PROCUREMENT AND DISPOSAL OF ASSETS BILL
[H.B. 5A, 2016]
THE MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT (HON. CHINAMASA): Mr. President Sir, I now
move that the Public Procurement and Disposal of Assets Bill [H.B. 5A, 2016] be now read for the third time.
Motion put and agreed to.
Bill read the third time.
THE TEMPORARY PRESIDENT OF THE SENATE: After
such good work this afternoon and having a very good, honest, transparent and hardworking Minister, I think we should join him as we go outside and chat with him a bit. So, he should adjourn the House and we can have tea with him.
HON. SEN. MUMVURI: Can I rise on a point of order.
THE TEMPORARY PRESIDENT OF THE SENATE: Okay.
HON. SEN. MUMVURI: Thank you Mr. President. I also want to thank the hardworking Minister, but I want to follow up Senator
Mlotshwa’s point. What happens is that the Bills are all in the pigeon holes but the frequency or time which they come to be discussed like this, I do not know what is going to happen to the making of the Order Paper? Can it come earlier so that Members know that this Bill is going to come in today? It is not possible for the Minister to give notice again because he has already given notice at the first reading but at the moment now, to say when is the Bill going to come so that we can discuss it and give it due recognition; I just want to support what Hon.
Senator Mlotshwa said and a way can be found. Thank you.
THE TEMPORARY PRESIDENT OF THE SENATE: That is
a valid and reasonable contribution. Certainly, Hon. Sen. Mumvuri you are right. Like on a Tuesday, you do not know what is coming this week. We adjourned last Thursday and we come in the House, that Bill which we only saw in October last year is now for discussion. So, that is a valid point and I think it is for the administration to ensure that a day or two days notice is given to say next week the following Bills will be on the Order Paper so that those who left them back in Rusape can ensure they bring them that week. Yes, I think it is a system that can work well.
Without spoiling the good work of this afternoon, we have passed a very good Bill and Members will agree with me that even in the absence of our Bills in the pigeon holes, I think we are clear we have done very well. This is good work. Minister, can I call upon you to move for the adjournment of the Senate.
On the motion of THE MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT (HON. CHINAMASA), the Senate
adjourned at Twenty Six Minutes to Five o’clock p.m.