On The Protection Of The Public Interest In PPP Legislation In African States

The "public interest" focuses on the relationship of dependence and confrontation between public power and private rights.Through this concept,it is possible to see both the extent to which and the ways in which private rights are respected in the public sphere,and the boundaries and paths through which public power intervenes in private territory.Reflected in Public-Private Partnerships(PPPs),the relationship between public and private actors based on public interest is even more distinct.For one thing,PPPs are both a forum for the public sector to pursue public interest goals and a place for the private sector to reap the benefits of investment.Secondly,the public sector,as the representative of the public interest,aims to safeguard the public interest;and as the contracting party of PPP projects,it has the responsibility to protect the interests of cooperation.To a certain extent,the public interest constitutes a check on the private sector’s interest,preventing it from expanding in a disorderly manner to the detriment of the public interest;however,the one-sided pursuit of the public interest and disregard for the private sector’s interest will seriously dampen the private sector’s willingness to invest and its incentive to perform,which is contrary to the original purpose of protecting the public interest.Therefore,the implementation of the public interest protection objective in the PPP model depends on respecting and safeguarding the interests of the private sector.A rational PPP law should seek a dynamic balance between public and private interests through a benefit-sharing and risk-sharing mechanism,leading to a sustainable and positive win-win situation for both.Although traditional African societies have not developed an independent civic class,nor have they developed a systematic view of the public interest in philosophical and political terms,this does not mean that African states are lacking in their position on the protection of the public interest.On the contrary,they have been colonised and,based on their inheritance of Western public interest thinking,they have developed a unique form of public interest protection,which is embedded in PPP law.In African states,given that PPPs are motivated by public needs,that the objective of PPPs is to promote good governance,and that the protection of the public interest is at the base of the pluralistic values of PPPs,the public interest occupies the highest position in the value system of PPP legislation.However,with the exception of a very few African states,the answer to the question of what the public interest is in PPP laws needs to be traced back to higher level legislation or left to the discretion of law enforcement agencies or the judiciary.In general,PPP laws in African states are relatively consistent in establishing a generalised concept of public interest and regulating PPP projects by stipulating that the public interest is the fundamental principle;establishing public interest protection provisions;and implementing governmental public interest regulation.Public interest protection runs through the entire life cycle of PPP projects in African states.In the PPP access phase,legislation generally sets positive project identification elements and a negative list to ensure that projects meet public needs;selects competitive procurement methods,establishes strict bidding procedures and introduces priority procurement mechanisms to ensure that procurement meets public policy;and establishes a special PPP regulator and establishes an access regulation system to ensure that projects do not deviate from public interest objectives during the initial period.In the PPP performance stage,legislation establishes the necessary terms and conditions for project contracts and gives the government the right to unilaterally change contracts to ensure that contract management follows public requirements;implements localisation requirements for subcontracting works and controls private sector project returns to ensure that project implementation adheres to public purposes;and builds a comprehensive monitoring system for project performance to ensure that project implementation does not deviate from public interest objectives.In the PPP exit phase,the legislation grants the government the right to intervene urgently and the unilateral right to cancel the contract to ensure that the public interest of the project is maximised upon termination of the contract;sets requirements for the transfer of ownership of project assets and status guarantees to ensure that the public interest is sustainable after the transfer of project assets;and constructs a comprehensive project exit supervision system to ensure that the public interest objective is not shaken during the project completion period.The protection of public interest in PPP legislation provides a sufficient basis for the implementation of PPP projects in African states.However,a large number of cases have shown that the application of public interest provisions in PPP legislation has very often failed to achieve what the legislation expected,and to advance the maximisation of the public interest value of PPP projects.On the contrary,there have been cases where the public interest of the public sector or the public has been overly tied to the interests of the private sector to the detriment of the public interest of the PPP project.In the application of PPP rules that prioritise the public interest as the starting and ending point for PPP projects,the fundamental purpose of the PPP model and the original intent of the legislation are defeated.It not only reduces the enthusiasm of the private sector to invest in PPP projects and detracts from the element of will necessary for the realization of the public interest of the projects,but also hinders the purpose and sustainability of the realization of the public interest,which eventually turns into a dilemma of will,purpose and sustainability in the application of the public interest rules of PPP legislation.The institutional factors contributing to the triple dilemma include: the misalignment and generalisation of the concept of public interest legislation in the PPP field;the alienation of the function of regional social governance carried by the public interest rules;and the deviation of the legal implementation of public interest protection by government departments.Accordingly,to promote the realization of public interest in PPP projects in African states,from the legal level,the joint action of the public sector and private investment entities of African governments is needed.Firstly,African states can improve the legal environment for PPP investment to ensure that public interest rules become a balancing act for coordinating multiple interests in projects.This requires African states to improve the shortcomings of existing PPP legislation,improve the substantive and procedural elements of the public interest rules to regulate the scope of application;improve the government’s public interest regulation and public monitoring system to enhance the transparency of public interest protection;pay attention to the protection of the private sector’s interests,so as to encourage the private sector to perform well on the basis of reasonable profitability,and then join the public sector to take the public interest as the basis of project cooperation.Secondly,public and private entities should strengthen the contractual spirit in the PPP model and optimise the contractual governance of PPP project operations.This requires public and private entities to negotiate PPP project contracts to find the optimal solution to the allocation of risks between the public and private sectors,implement a pricing mechanism for the operation of the project,and clarify the elements of the government’s unilateral decision to exercise its power,so as to delineate the boundary of government regulation in the public interest and protect the core interests of the private sector.Thirdly,in the current market situation where African states are dominated by cross-border PPP project cooperation,the government and overseas private investors should actively seek approaches at the international law level.For example,by updating and improving international investment protection agreements to enhance the enthusiasm of private investors for PPP project cooperation;encouraging the application of multilateral investment guarantee agencies to increase credit to protect against,mitigate and transfer relevant project risks;and promoting standardised PPP contracts in the African region to implement the operability of public interest rules.In this way,efforts will be made to improve the success rate of PPP projects in African states and promote the ultimate realisation of the value of the public interest due to PPP.