Tuesday, 27 August 2013

Govt outlines plans to cut litigation losses


Poor contractual drafting, management decisions taken without legal advice as well as deliberate flouting of tendering laws has cost the government over Rwf2.3 billion in court awards and compensation.

While addressing the heads of public institutions and district executive secretaries, the Minister for Justice and Attorney General Johnston Busingye said the money was awarded to both individuals and companies over the past five years.

He said the loss was unfortunate but new ministerial instructions were being drafted to help reverse the trend.

It is understood the documented loss was only from government ministries and provinces, excluding other public institutions and districts, meaning the loss could have been much more had all the institutions been included.

The investigations continue with other public institutions, said Busingye.

“We need to find means and ways of preventing litigation. We are the ones in charge of keeping the money, spending, giving contracts but how come our contractors are suing us. You have to be careful while signing these contacts,” the minister told the meeting.

“We have learnt that some institutions even allow bidders to prepare contracts and all they do is just sign. This is illegal and against public procurement rules.”

Most of the court cases lost were mainly by civil servants suing their parastatals over different issues and flaws in awarding government tenders and other unnecessary administrative decisions by officials.

The minister noted that some officials focus more on awarding contracts without looking at the technicalities involved and seeking the help of Ministry of Justice in negotiating the contracts .

It was further discovered that the legal advisors attached to these government institutions are not given the chance to exercise their duties, which according to the minister, led to lack of legal inputs during negotiation of contracts.

“We have realised that in the cases where government is sued, only one per cent have legal opinion; so what are the legal advisors doing in these institutions?” he said.

Two weeks ago, during the minister’s meeting with state attorneys and legal advisors, the minister was told that some heads of institutions deliberately sidestep them during negotiation of contractsonlyto be called upon when the institutions are dragged to court.

The minister advised the institutions to make use of the legal officers, because they are paid to make sure government does not lose litigations unnecessarily.

Unfair dismissals

There are also cases where some public institutions unilaterally hire private lawyers without involving the Ministry of Justice and when the things get tough they seek the ministry’s intervention.

Xavier Mbarubukeye, the secretary in the ombudsman’s office cited cases where employees have also sued government over unfair dismissal.

“It’s a serious problem, heads of different institutions should always go through the right procedures. You cannot just dismiss a person over a slight mistake,that’s why employees end up dragging government to courts of laws,” he said.

Ministerial guidelines on drafting, negotiations and management of government contracts would be available by the end of October.

The legal advisory information system had been created to help seek the legal opinions from the ministry and it would be done electronically to assist the government institutions where necessary.

Government institutions were also advised to provide capacity building programmes for their legal officers as this would help improve their efficiency.

Last month two local construction companies BERCO and Enterprise de Construction sued government at the Commercial High Court over a misunderstanding that cropped up after the firms, in a joint venture, won a tender to rehabilitate a 34km feeder road connecting Rusizi-Ntendezi-Mwityazo, in the Western Province, which was later nullified.

The tender was valued at Rwf3.4 billion.

An internal report by the ministry obtained by The New Times in July recommended that the government should improve services of its Legal Advisory Service (LAS) desk at the ministry by hiring more lawyers, focusing on bigger contracts, and communicating more with government institutions.

A team of six lawyers constitutes the LAS team.

The report by independent consultants and commissioned by the Ministry, criticised the ministry’s Legal Advisory Service (LAS) for taking too long to deliver its legal opinions, not being in touch with legal advisors from other institutions, and failing to provide informed decisions in some technical areas.

Govt outlines plans to cut litigation losses


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