Lesotho: I Have Never Influenced Awarding of Tenders - Hlalele

3 December 2019
interview

In January 2018, the Lesotho Times reported that the Directorate on Corruption and Economic Offences (DCEO) was investigating allegations of corruption in awarding of the M140 million senate building tender. This publication also reported that the Public Works Principal Secretary, Mothabathe Hlalele (MH), would be questioned over the corruption allegations.

The DCEO subsequently completed its investigations and told this publication that Mr Hlalele would be hauled before the courts to face charges of corruption and abuse of power. However, the acting Director of Public Prosecutions (DPP) Hlalefang Motinyane, later said that there was no evidence of corruption against Mr Hlalele in connection to the awarding of the tender.

But Mr Hlalele remains a controversial character with many still accusing him of wielding undue influence in the awarding of tenders.

The Lesotho Times' (LT) Editor, Herbert Moyo, recently spoke to Mr Hlalele about the controversies surrounding the senate building tender, the royal palace construction, the M380 million Mpilo Boulevard tender and other issues concerning the Public Works ministry's operations. Below are excerpts of the interview.

LT: By way of introduction can you tell us how long you have been at the Ministry of Public Works and the scope of your work? What does it involve?

MH: Back in 2003 I started working for the government in the Ministry of Employment and Labour as District Labour Officer. I worked more as a legal officer than as a District Labour Officer. In 2005 I was appointed Senior Legal Officer for the Maseru District Council until the end of 2012 when I resigned from government. I wasn't feeling challenged so I just wanted to try something new in private business and other things. But then in 2015 I was appointed Principal Secretary for Cabinet Administration by Prime Minister Thomas Thabane. A few months later there was a change in government and I continued to work as principal secretary in the new Pakalitha Mosisili government for a year. Then at the beginning of 2016 I parted ways with the government after they bought me out of my contract. Then in July 2017 when Dr Thabane returned to power I was appointed Principal Secretary for Public Works and this is the position I am still holding.

LS: What does your job actually entail? Please speak to the issue of tenders because this is where there is usually a lot of noise.

MH: The mandate of the Ministry of Public Works is to provide infrastructure for the whole country, be it roads or buildings. For the building infrastructure we have a department called Buildings and Design Services (BDS) and for roads infrastructure, we have the Roads Directorate to deal with roads construction and maintenance. BDS is tasked with maintenance, refurbishment and the construction of new buildings for the government, government departments and ministries. At the Ministry of Public Works we have our own expertise. We have civil engineers, quantity surveyors, architects, electricians, mechanical engineers and all sorts of disciplines which are involved in the construction industry. When a government ministry intends on undertaking a certain project, they first come to us and ask for our advice, the steps to be taken and all that. When the concept has been finalised that particular ministry will take that project proposal to the Ministry of Development and Planning for appraisal. Once the project has been appraised and approved, we quantify the project for budgeting purposes. And then now when the project is budgeted for and the money is available, we will start the processes of implementation upon instructions from the client ministry. That is where we move into the procurement. The procurement is done by Public Works. For example, if we are going to build the mining laboratory, the Ministry of Mining will pay for the notice advert in the Lesotho Times for example. So the tendering process is undertaken by the Ministry of Public Works with an evaluation team that has been appointed by the Public Works ministry.

LT: There are so many tenders out there, but there are some that immediately come to mind which the public would love to hear about, in terms of their status and the controversies surrounding them. There's the Senate building and the Royal Palace construction. Where are you with all those?

MH: The Senate building case was in the courts of law and the case has been finalised now. The original preferred bidder, Yan Jian, is still the preferred bidder according to the court and I can't argue with the court. I might have my own opinion, but I won't argue with the court because once I interrogate the decision of the court it might amount to contempt of court. I have my own opinion but the court has decided the way it has decided.

I am fine with Yan Jian and in any event I never had any interest who got the tender. But I was only interested in the fairness of the process. Who gets a tender is not up to me but it's the decision of the tender panel. By law I am chairman of the tender panel but I am not the tender panel. The tender panel is comprises of many people and any decision of the tender panel is a collective decision. If there is a disagreement among members of the tender panel, the issue is put to vote and the majority wins. But after the Senate building saga I decided not to sit in the tender panel anymore. I decided not to chair the tender panel and let them do whatever they wanted to do because I didn't want anybody saying I have influenced anything in any way whatsoever. So the tender panel does its own business and they do it in accordance with the law regarding procurement.

So in a nutshell, the Senate building tender is at a stage where we can now go ahead with the implementation of the project. Last Tuesday I communicated with Clerk of the Senate to say we should go ahead with the implementation of the project. But unfortunately it won't be in this financial year because the project was not allocated any funds because of the saga surrounding it and all the court cases. So it will have to be taken for appraisal by the appraisal committee of the Ministry of Development Planning so that it is included in the budget of the next financial year. The project can only start being implemented next financial year when funds are available for its implementation.

As for the Royal Palace, I came into this office when the Royal Palace construction was in a comatose state. You wouldn't know whether it was alive or it was dead because of so many things that surrounded it. There was change in the architect (after the first architect South African company, Palace Architects, withdrew) which really delayed the whole project for so many years and that changed the costs in a way that is substantial. The second architect (Makeka Design Lab headed by Mokena Makeka) also unceremoniously decided to ditch that project. I am still going to take him (Mr Makeka) to task for that because he cost us time and money. There is also information that Mr Makeka is still withholding which we, as the government, paid for. But up to now he still hasn't released that information which is needed for the interior décor of the Royal Palace. Subsequently we engaged another interior décor after Makeka ditched us. The new architect Solebi and Blacksmith Joint Venture has been in constant communication with Their Majesties to see how everything should be done because we have to get their input and do everything they say.

I am satisfied with the progress made as far as the Royal Palace is concerned although we have had some problems with late payments due to the financial system we have installed. Sometimes it delays payments and those delays subsequently cause delays in the construction programmes of the contractor. It also causes us to incur additional expenses but unfortunately there is nothing we can do about that. But the Royal Palace is now at a stage where the building is complete and we are now dealing with decoration part of the building. We are now waiting some furnishings for the interior décor which will only arrive around April or May 2020 and by June I believe that everything will be perfectly done and finished. I believe that by July there will be a huge ceremony where there will be the handing over of the Royal Palace.

LT: You say that you are still going to take the Makeka's to task, what does that mean? What exactly are you planning to do?

MH: They are withholding information and that is unethical because that information does not belong to them. It belongs to us because we paid them to deliver that information. It was part of the contract. And now, if for one reason or another we have a misunderstanding I don't believe they are entitled either legally or professionally to withhold information which is not theirs but ours. We will write to the association for architects in South Africa where Mr Makeka is a member to say that we are not satisfied with one of your members.

We haven't decided to go to court because we haven't reached that stage. If they oblige and release the information then we have no reason to go to court. But if they will persist with the withholding of information we are definitely going to court and demand the information because it belongs to us, not to them.

LT: We have had the Queen II demolition project becoming an issue and some people from the Ministry of Health are suggesting that within the Public Works ministry there are people interested in the tender.

MH: I have heard that crazy story before so many times. I have become used to it and I can now recite it by heart. Whenever the Queen II issue is raised I already know what is going to be asked and what is going to be insinuated. I believe it is a part of my life that I have accepted to live with. I can tell you that this is the hottest seat anyone can ever sit in because this is where all the major government projects are concentrated. Whatever you do, you will never be right in the eyes of all people. I was recently interviewed on radio and there was a caller who said I was interested in who gets Queen II demolition tender and I lost it. I asked the presenter to ask that caller to substantiate his claim. If he says he is sure that I am interested, why can't he go to the authorities? You have the police's fraud department. You don't have to seek my permission to go there to whistle blow about me. You just go there and tell them, 'I think that man is committing fraud, go and investigate him'.

With regards to Queen II demolition, it was the first time that we experimented with a new policy to force companies to have joint ventures or consortiums when we tender for projects. It was the first project where we had three separate lots. Lot one was about the demolition itself, lot two was about taking out the roofing, window and door frames and everything else related and lot three was about removing the rubble. For each lot, we wanted a consortium or venture of not less than three companies and for that matter indigenous Basotho companies. So even if a company is locally registered, but is not owned by 100 percent by indigenous Basotho, it was precluded from tendering for that project. After the processes were undertaken, advertisement was done, submissions were made, evaluations were done and the tender panel did its part by awarding the project to three different joint ventures made up of three different Basotho companies each. This meant that a total of nine companies were got the tender. But for one reason or another, there was this misunderstanding by the Ministry of Health that the project was expensive whereas it wasn't too much. They said they had M16 million whereas the entire project required M29 million. And so they said it was impossible to go ahead with the project. I advised them to seek more funds from the Finance ministry and I heard that Finance refused, saying there were no more funds to be reallocated to that project. I then got an instruction from the Principal Secretary of Health to negotiate with the contractors for a reduced price and we did that.

But even after that, the Health ministry was still not satisfied and then they reached an agreement with the Ministry of Defence that the army will demolish Queen II instead. We don't have any problem with that. We are totally in support of that as Queen II can be demolished so that the new Maseru hospital can be built. So we are in support of the army demolishing Queen II and we are ready to assist whenever we are needed. We are going to do the supervision and we will also help with the logistical arrangements for the army to get into that project site and demolish Queen II. At the moment we are busy with that and we are part of a committee made up of different ministries to achieve that. If everything goes according to plan, by the 15th of November 2019 the site will be ready for the demolition process to begin. At the moment Queen II is still occupied by the Ministry of Health so they are busy with the procurement of the park homes so that they can move the hospital, staff and equipment to a temporary location at the BEDCO premises.

LT: So what happens to the companies which had won the tenders? Are there any legal implications?

MH: There are legal implications because we have contractual obligations. We had already negotiated with them, made offers and they accepted. This means we have valid contracts which are binding but I will negotiate with them because I wouldn't want to see a situation where anybody goes to court to stop us from demolishing and building the new hospital although legally they have the right to do that. I will persuade them not to take that route. Maybe we can negotiate a settlement whereby we can give them some compensation.

LT: There's this issue of Mpilo Boulevard tender of M380 million that came up very recently at the Public Accounts Committee. The Minister of Small Businesses, Chalane Phori, says he is entitled to benefit when tenders are awarded because he is a member of the ABC which is in government right now. From your legal background, don't you think there should be a separation? Other countries say that when you are a public servant you not supposed to compete for tenders which are given by the same government you are part of.

MH: These things differ from one system to another. In our system the law does not preclude a public servant from tendering for any projects that are being offered by the government but the law says that you have to clearly show your interest. For example, even as a principal secretary I can own a company. I am not precluded by law from owning a company. But if I am going to bid for a tender then I should not be part of the adjudication process. I have to clearly show my interest and say that I have an interest in company A and I am not going to be involved in any way with the adjudication process.

LT: Even if there are no laws, surely there is something ethically or morally wrong about bidding for government tenders when you are a senior member of that government?

MH: You can say that it is morally wrong, but legally is it wrong as far as our system is concerned? The answer is no. The law does preclude it because if we say it is illegal, we have to say the law does not permit it. But the law does permits it. Of course I cannot tender with Public Works ministry because I'm its Chief Accounting Officer. How am I going to do it? Am I going to be the player and referee at the same time? I can't. Ethically it would be wrong even if there wouldn't be anything preventing me from doing so legally. But I wouldn't do it for ethical reasons.

As for the Mpilo tender, remember we are talking about the Minister of Small Businesses. He is not the Minister of Local Government so he can bid for the tender.

LT: But he (Mr Phori) says he is an ABC member and he says he is supposed to benefit for that reason. He also says the Local government principal secretary and the Maseru Town Clerk are his friends. Isn't there something wrong with that?

MH: I don't know why he said that and I won't dwell on that. I want to talk about the principle here. The principle is that this man (Mr Phori) is a minister but he is not the Minister of Local Government. He is the Minister of Small Businesses and he is also a business man. Remember he was a renowned businessman before he was appointed minister. You know that very well. I think that some of his businesses even advertise with your newspaper. He is a contractor. It is a well-known fact. He doesn't head the Ministry of Local Government but he heads the Ministry of Small Businesses. So, what is wrong with him tendering where Local Government is having a project, so long as it is not going to be influenced by the fact that he is a minister? So long as it is not going to be influenced by the fact that he is an ABC member? That is why I said I don't want to dwell on the fact that he talked about the ABC but I want to deal on the principle. I don't see anything wrong with the fact that the Minister of Small Business tendered for a project under the Local Government ministry.

LT: What's the way forward in terms of the vision of your ministry? What projects can be expected?

MH: The biggest project that we are about to undertake the airport refurbishment project. That is a huge project and phase one is going to cost us M1, 6 billion. We are upgrading the airport. Among other things, we will upgrade Kofi Anan Road from Pioneer Mall circle all the way to the airport and we will put up streetlights. We will also widen the road in some areas. It is a huge project and about M400 million will be set aside for the Kofi Anan Road upgrade. We will also going to upgrade the airport runway and extend it by a kilometre. We will refurbish the terminal building. We will also re-do the perimeter fencing and also now put intrusion detection systems to stop people from destroying the fence to get their livestock into the airport area for grazing purposes.

So we are going to put an intrusion detection system around the perimeter of the airport which is 32 kilometres all round. We are also going to upgrade the perimeter road around the airport and also re-do the access roads and the taxi way. We will also install new aeronautical equipment at the airport and everything will be brand new.

The project will start next year. We are now in constant negotiations with the European Investment Bank and they have agreed in principle to give us the M1, 6 billion. Fifty percent of that will be a grant and the other half a loan with acceptable repayment terms in accordance with IMF regulations.

Phase two of the project will see the private sector coming in to invest in high-income housing apartments, boutiques, hotels, guest houses and other amenities close to and around the airport area.

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