Former Treasury Cabinet Secretary Henry Rotich has lost his bid to have fraud charges against him over the alleged loss of Sh55.8 billion in the Kimwarer and Arror dams scandal quashed.
High Court judge Esther Maina dismissed Mr Rotich’s petition, saying the former CS failed to prove that Director of Public Prosecutions Noordin Haji had an ulterior motive in charging him.
The judge further said Mr Rotich was asking the court to delve into the merits of the charges he was facing, which is the job of the trial magistrate.
Justice Maina added that although Mr Rotich argued that the charges related to the stalled construction of the two dams in Elgeyo Marakwet County were motivated by ulterior motives, he has not been convicted yet.
“It is evident that the applicant herein is drawing this court to determine his innocence or otherwise, which is not the province of this court and accordingly, his petition must fail,” the judge said.
“It is my finding that the issues he has raised ought to be raised in the trial court. He has not demonstrated to this court that his prosecution is motivated by ulterior motives.”
Mr Rotich moved to the High Court to challenge the charges brought against him saying his role as the Treasury CS was to review and negotiate the proposed financing proposal and if acceptable, proceed and execute the loan facilities agreement in accordance with Public Finance Management (PFM) Act.
Mr Rotich further questioned the decision by the prosecution not to charge former Environment and Regional Development Authorities Cabinet Secretary Judi Wakhungu and experts from the ministry. He said he signed the agreements at the tail end as part of his statutory responsibilities.
He argued that he was not the accounting officer and did not have authority over the procuring entity, the Kerio Valley Development Authority (KVDA,) or played any role in the procurement processes.
Mr Rotich argued that the government criminalised his role in the Arror and Kimwarer dams scandal yet other multi-billion projects such as the standard gauge railway were subjected to a similar procurement process.
He maintained that the prosecution misunderstood what constitutes a government-to-government loan and his role as the Cabinet Secretary under the PFM Act.
“He (Mr Rotich) was not involved in the contracting process. And when he entered into a financing contract, he did so following the PFM Act. There is misinterpretation by the DPP as to what constitutes the government-to-government loan,” his lawyer Paul Ng’arua said.
The DPP has faulted the former CS for single-sourcing the insurance policy known as SACE (an Italian export credit agency offering insurance) valued at Sh11 billion, an amount that was allegedly inflated by more than 400 percent.
The bidder, according to court documents, was Cooperativa Muratori & Cementisi CMC Ravenna- Societa Cooperativa.
According to the DPP, the insurance policy should have been subjected to competitive bidding. Mr Haji also argued the agreements, loans and drawdowns and payments were made prematurely.
The prosecutor said Mr Rotich acted outside the law and in breach of his duties by sourcing substantial funds for a project that was flawed.
Mr Rotich admitted signing agreements with BNP Paribas Forties S.A./N.V; Itesa Sanpaolo S.P.A.; Unicredit S.P.A. and Unicredit Bank AG in April 2017, to finance the construction of the two dams.
But he said the DPP failed to understand the law and the procedures of entering into a loan agreement and charged him on the wrong premise that they were improper and constituted a loss of public funds.
The DPP dropped charges against former Treasury Principal Secretary Kamau Thugge and Susan Koech, a former PS in the Ministry of Environment, and plans to use them as witnesses in Mr Rotich’s trial.