Abstract
The central focus of this study is an analysis of the law of public contracts in Rwanda with a view to placing it within the normative framework of legality supplied by the principles of good governance. From a comparative examination of the public contracts law in countries of divergence (Rwanda,
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France and Belgium) and countries of convergence (England and The Netherlands) between public and private law, this study makes a close assessment of the powers to enter into contract, the legal rules and principles governing execution and the jurisdiction of courts over public contracts litigation. It shows that the public contracting in Rwanda is mainly governed by public law, as borrowed from the French and Belgian law. The public law way justifies the distinction made between the numerous ‘administrative contracts’ and the few ‘private contracts’. This study then considers whether the law of public contracts in Rwanda should continue to be dominated by public law, which grants certain special powers to the administration; or whether the rules of public and private law can be applied in interaction (with reference to the Netherlands which has a mixed application approach and in comparison with England which uses the private law way approach), with the support of principles of good governance (pgg) to shape up their usefulness. The reason for identifying the pgg as being the chief legal norm for public contracting is the evolving conception of legality in administrative law, which is moving from the classical legality which favours the grant of special powers, to a modern legality privileging the principles of good governance. For the achievement of aims and objectives which the administration has in the area of public contracting, their application offers a more appropriate normative framework than that which currently exists. These pgg can also serve to counter any adverse consequences which may be caused by public or private law. If for example the application of public law could cause delays or frustrate the legitimate expectations, likewise private law could cause disagreement amongst government policy makers, which the pgg can mitigate. A functional categorisation is then suggested, grouped into three categories: The ‘public contracts with a high level of public interest to defend’, governed by more public law rules and principles; the ‘public contracts with a medium level of public interest’, governed by public and private law in combination; and the ‘public contracts with less/no public interest to safeguard’, governed by more private law rules and principles. Principles of good governance are relevant to all these categories, but they differ depending on the particular stage of contracting. During the pre-contractual phase, equality, transparency and prohibition of misuse of power are most relevant. During the contractual phase, public contracts should not be arbitrary modified or terminated, and if such modifications occur, they must be justified; effectiveness and legitimate expectations must be respected. Accountability should also be triggered, and decisions and remedies, whether by administrative or judicial avenues, should be fair.
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