By Laurence Folliot – Although many events from the Middle East and North Africa region have enjoyed large press coverage and headlines, one has remained, to date, a rather well-kept secret: the inclusion of governance and a dedicated provision on Public Procurement in the new Moroccan Constitution, adopted by referendum on July 1, 2011. In doing so, Morocco has joined the very small list of countries (i.e., South Africa and the Philippines) to grant a constitutional status to this rather technical field, the impact of which will be progressively felt in the world (even outside the small world of procurement lawyers), as it affects how government money is converted into goods and works like roads, schools, vaccines, etc.
Proclaimed by the Preamble and woven throughout its articles, Governance and governance topics including access to information, transparency, integrity, anti-corruption, accountability, and social participation (notably through a right to petition), are paid an unprecedented tribute in the new Constitution. Such topics, which are considered recent features of good governance, are usually prescribed at the lower level of ordinary laws or regulations. However, with their inclusion in the Constitution of Morocco, they now enjoy a preeminent status that supersedes any potential contradictory law or regulation. Beyond being a symbolic gesture with potential profound legal implications, this will change the dimensions of the debate on Governance by expanding opportunities for improvement (e.g., facilitating a dialogue on social accountability with the Government).
Governance in the Constitution will trickle down to and benefit procurement. The new provisions such as the one promoting access to information will mirror international best practices in procurement laws which require the publication of all procurement documents on a free website. The procurement process will be impacted by the provision granting the right to challenge any administrative decisions before the Administrative Courts. Another provision addressing the principle of free competition could help ensure all bidders are allowed to compete without discrimination. And on the topic of integrity of public management, public procurement and the administration of public contracts were considered important enough to earn their own article (article 36):
“Offenses relating to conflicts of interest, insider trading,and all offenses of financial nature are sanctioned by law.Public authorities are obliged to prevent and punish according to law, all forms of delinquency related to the activities of government and public bodies, to the use of funds they manage,to the award and administration of public procurement contracts.Trafficking of influence and privilege, abuse of dominant position and monopoly,and all other practices contrary to the principles of free and fair competitionin economic relations are sanctioned by law.There shall be installed a National Integrity and Anti-Corruption Agency” (free translation from the author of this blog).
Indeed, the National Integrity and Anti-Corruption Agency and the Competition Agency (which is also mentioned by the Constitution), will definitely have their say in public procurement matters, illustrating the strategic position occupied by procurement as a public function situated at the crossroad between governance requirements and public financial management.
However much remains to be done: The Moroccan Constitution calls for 19 implementing laws (named “Lois organiques” to differentiate them from the ordinary laws) that shall be enacted through a specific solemn parliamentary process within six months by the new Legislature following the November 25elections. The challenge to prepare so many “organiques” laws under such time constraints is magnified by the requirement to include the new principles proclaimed by the Constitution. For example, enforcing the aforementioned article on conflict of interest may prove difficult as the concept of “conflict of interest” is not specifically defined, nor its coverage described or its targets listed. The public procurement framework will be also impacted by the new constitutional elements that allow the citizen’s participation in and oversight of local development projects for which new tools and mechanisms will have to be designed. Therefore, it will be interesting to follow the work done by the Moroccans to implement the Constitutional principles across the public sector.
Considering the demands for transparency, integrity and accountability which helped serve as the foundation of the “Arab Spring,” we may assume the practice of including Governance topics and public procurement in the Constitution may be expanded outside the Moroccan borders and considered by other Constitutional Assemblies in Tunisia, Egypt or Libya. This would not be surprising given the growing consensus that transcends political affiliations to install ethical and accountable public functions under the scrutiny of the civil society. Perhaps as we look back at this time in the years to come, the inscription of government spending and purchases on the frontispiece of a country’s primary legal document shall become an emblematic testimony of this new era.