Rotich now claims double standards in dams case


Ex-Treasury Cabinet secretary Henry Rotich. PHOTO | JEFF ANGOTE | NMG

Former Treasury Cabinet Secretary Henry Rotich on Wednesday accused the government of criminalising his role in the Arror and Kimwarer dams scandal yet other multi-billion shilling projects such as the standard gauge railway were subjected to a similar procurement process.

In an application in which he wants the graft case against him quashed, Mr Rotich argues that the Director of Public Prosecutions Noordin Haji misunderstood what constitutes a government-to-government loan and his role as the Cabinet Secretary under the Public Finance Management Act.

Through his lawyer Paul Ng’arua, Mr Rotich has cited other infrastructure projects such as the standard gauge railway which he says have been financed in a similar manner.

“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 to government-to-government loan,” Mr Ng’arua said.

The DPP has faulted the former CS saying he single-sourced the insurance policy known as SACE (an Italian export credit agency offering insurance) policy valued at Sh11 billion, an amount that was inflated by more than 400 percent.

According to the DPP, the insurance policy should have been subjected to competitive bidding. But Mr Ng’arua told High Court Judge Esther Maina SACE was a condition in the loan agreement, which he said was cleared and given a legal opinion by then Attorney-General Githu Muigai.

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.

“The DPP failed to understand the law and the procedures of entering into a loan agreement and has charged the applicant in the wrong premise that they were improper and constituted a loss of public funds,” he said.

But the DPP through Alexander Muteti said the former CS completely misunderstood the Public Private Partnership project and violated the law with impunity.

“In fact, what began as a PPP contract mutated into a commercial contract. The issues that are involved in it are not fit to be determined by the High Court but a trial court. If we presented our documents, it will result in a mini-trial. This case is meant to delay the criminal trial,” Mr Muteti submitted.

In charging Mr Rotich, the DPP said the former CS hid behind government-to-government procurement to single source the insurance company.

The prosecution alleges that CMC Di Ravenna- Itinera JV was paid Sh4.3 billion on September 27, 2018, as an advance payment for Arror dam and for Kimwarer dam, an advance payment of Sh3.5 billion was allegedly approved on July 2, 2018.

In charging Mr Rotich, the DPP said the former CS hid behind government-to-government procurement to single source the insurance company.

The payments in two tranches were made to a web of associated companies in Kenya, South Africa and Italy that were not on tender documents, according to the DPP.

The bidder, according to court documents, was Cooperativa Muratori & Cementisi CMC Ravenna- Societa Cooperativa.

They declared a joint venture known as Aecom South Africa PTY Ltd but the company that was issued with the letter of award was CMC Di Ravenna South Africa while payments were made to CMC Di Ravena/Itinera JV Kenya Branch.

Mr Rotich has challenged his prosecution, questioning why former Environment and Regional Development Authorities Cabinet Secretary Judi Wakhungu and experts from the ministry were left out. He said he signed the agreements at the tail end as part of his statutory responsibilities.

The DPP dropped charges against former Treasury Principal Secretary (PS) Kamau Thugge and Dr Susan Koech, a former PS in the Ministry Environment, and plans to use them as witnesses in the trial against Mr Rotich.

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