Former AG faults CS Macharia on multi-billion medical leasing deal
By Rawlings Otieno | July 23rd 2020
Transport Cabinet Secretary James Macharia was yesterday faulted for questionable leasing of the multi-billion shilling Managed Equipment Services (MES) for counties when he was in charge of the Health docket.
Former Attorney General Prof Githu Muigai (pictured) told senators that Macharia and his then Principal Secretary Khadijah Kassachon failed to abide by his legal advice prior to the signing of the programme in 2015.
Appearing before the Senate Ad-hoc Committee chaired by Isiolo Senator Fatuma Dullo, Muigai said the two not only ignored his legal advice but also failed to deliver the multi-billion shilling contracts signed between the ministry and five international firms.
The former AG revealed that by the time he exited office in 2018, the Health ministry was yet to deliver to his office the final contracts for sign-off.
During cross-examination by the senators on whether Macharia and Kassachon violated the law by going executing contracts on behalf of government without his involvement, he remained non-committal only referring the senators to the ministry’s mysterious records.
Senator Mr Moses Wetang'ula (Bungoma) told Githu that failure to comply with law was an irregularity. He questioned if the ministry violated the law.
“Mr AG would you be surprised that the contract was varied from the initial Sh38 billion to Sh63 billion, ignoring your office? Failure to comply with law is itself an irregularity. Did the ministry violate the law,” posed Wetang'ula.
But in his response, Muigai said: “They did not violate the law, they only failed to follow the normal and standard procedures. They only bungled clear guidelines of bringing the contracts for sign-off by the State Law office".
He further told the lawmakers there were times during his tenure when some ministries overlooked his office as chief principal legal advisor to the government.
And in some instances, ministries finalised contracts, some running into billions of shillings, without involvement of the State Law Office, but got to know of its existence when the concerned ministry needed finances from the national Treasury.
The MES contract was initially at Sh38 billion but the cost was later varied to Sh63 billion, with county chiefs crying foul.
“I am very surprised that a government officer would want to execute a document that has not been sanctioned by the chief legal advisor of government,” said the former AG.
He was also at pains to convince the Senate committee on why he gave the greenlight to the ministry to sign contracts with the five international firms.
He told the senators that he only gave the greenlight to the ministry to sign pre-contracts with the contractors on February 6, 2015 at State House, adding that the ministry was expected to enter into further negotiations and send the documents to the AG’s office for review before signing the final and binding contracts.
“The greenlight was for the ministry to go back and negotiate the final contract. This meant they will not sign them, they will negotiate with the vendors. After they finish negotiating them, they would send them to me for review,” he said, adding: “They never complied with that.”
However, Wetang'ula, Enock Wambua (Kitui) and Stewart Madzayo (Kilifi) demanded to know what the AG wanted to verify in the contracts yet there was an express letter from him allowing the ministry to sign the contracts on February 6.
“Where, in this letter, is your express wording that what was being signed on the February 6 was a ceremony? You have clearly indicated that they sign the contracts,” Wetang'ula said.
“The question we are asking is, what were you reviewing? It is finalised. It is concluded. It is signed. What did you want to review?” posed Wambua.
However, Githu explained that he only authorised the signing of the pre-contracts, a ceremonial event held at State House to show the parties’ willingness and intention to enter into a binding contract.
He said his work as chief legal advisor to government was not to supervise ministries and its agencies but offer legal advice to his client, the government.
“The AG is an advisor, it is very difficult to convert him to supervisor of government. He advises ministries 'please do this', 'ensure this is done' and so on, but you can't go there to make them do it,” Githu told the senators.
“On the February 6, they signed the pre-contract; the one intended to show that they would be contracting. The one that would be caught on camera and so on,” he added.
But upon realising that the MES contracts had been duly executed, he said, the State law office wrote to the ministry contesting the manner in which the contracts were being implemented.
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