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I was sacrificed in the dams scandal, Rotich tells court

By Kamau Muthoni | December 2nd 2020
Former Treasury Cabinet Secretary Henry Rotich at a Milimani court where he was charged with abuse of office and corruption. [George Njunge, Standard]

For over five years, former National Treasury Cabinet Secretary Henry Kiplagat Rotich was the most sought-after person after President Uhuru Kenyatta and Deputy President William Ruto.

In a corner office at the Treasury building in Nairobi, his signature meant either abundance or doom for government, its agencies, counties and tenderpreneurs seeking money from the country’s purse.

Surrounded by bodyguards, a flag and a chase car on tow, he wielded real power. And with the key to Kenya’s cash reserves, he was maybe the busiest man, being consulted over government contracts, preparing budgets, briefing the President and attending Cabinet meetings, answering questions in Parliament on the status of the country’s finances. In addition, he is a family man.

And of course, he was the face of the nation whenever Kenya wanted to strike a deal with another country or with the country's business partners. Each day of his calendar was marked with an activity. And it was planned.

However, on July 23, 2019, his world turned upside down. He was charged with graft surrounding Kimwarer and Arror dams saga.

The power, the guards, the flag and even those who incessantly sought after him vanished into the thin air. His mobile phone went silent too.

In court papers, filed before the High Court and seeking to quash the charges that he was isolated for the hang, he says he is jobless and no one wants to even give him an ear for a consultancy.

“This selective approach to the law applicable and expert advice is indicative of objectivity, unreasonableness and illegality,” he says in an affidavit.

As the norm, the Directorate of Criminal Investigations has his fingerprints. If he was to seek a government job, his ‘good conduct’ certificate will read that he has a pending case. 

Despite his long career as an economist, the criminal case now hangs on his head like a dark cloud.

Rotich claims he was the sacrificial lamb in the whole saga. In his papers filed by lawyer Kamunya Ng’arua, the former CS alleges that despite his then Environment colleague Judy Wakhungu requesting the Treasury to borrow funds to finance the two projects and Kerio Valley Development Agency directors approving them, they went scot-free and he was left to hang.

By charging Rotich, the State said he had a case to answer for his actions or inaction.

In his filings, he however says he had no role in the procurement process and had no powers to direct the Environment Ministry or KVDA.

The former minister alleges that the Ethics and Anti-Corruption Commission (EACC) and the Office of the Director of Prosecution (ODPP) were aware of Wakhungu’s letter dated March 14, 2016 which allegedly informed Treasury that KVDA directors had approved Kimwarer and Arror dams development, had procured and identified a contractor and source of finances.

The two being Vision 2030 projects, he claims, the former CS requested Treasury to review the proposed financing and borrow funds to finance the projects.

“ I am not the accounting officer or employee of the procuring entity KVDA or the parent ministry. Furthermore, the Ministry of Environment, Natural Resources and Regional Development Authorities in their letter dated March 14, 2016 stated that the board of directors of KVDA approved the development of Kimwawer and Arror multipurpose dams,” he claims.

He adds: “It is not the mandate of the Cabinet Secretary of the National Secretary to supervise or micromanage procurement proceedings in government entities. Legal issues arising there from are the responsibility of the procuring entities and their officers. I was not such an officer responsible for the procurement matters of the entity in question.”

Being a Vision 2030 flagship project, the former minister says it passed through the Cabinet, which is headed by the President. 

He accuses the State of hounding him for merely undertaking a statutory duty as requested by a Cabinet colleague.

He says he was required by law to sign all financing agreements on behalf of the Government upon issuance of clearance by the Attorney General.

He believes that since the case has 26 accused persons, it will not be determined either way as soon as possible as some of those accused are not within the country. He believes the charges were unfair and prejudicial to him.

“The particulars of prejudice include loss of dignity arising from the unfairness and misappropriation of law against the applicant, loss of opportunity to economic activity including and not limited to opportunities such as employment or consultancy as long as these charges are hanging over his head; this has gravely curtailed his rights to social-economic opportunities and rights due to the respondents’ misappropriation of law,” Rotich’s court papers read.

Treasury reportedly borrowed Sh63 billion for the dams. The lucrative tender was issued to Italian firm CMC Di Ravena. The two projects were to inject at least 80 megawatts of electricity to the national grid and benefit more than 6,000 residents by providing water for domestic use and irrigation.

Following investigations, Rotich was charged alongside his then PS Kamau Thuge and CMC directors among others.

They denied the charges and are out on bond.

Rotich’s case came up yesterday, as CMC battles the State in a separate suit on the same project. It accuses two government agencies of failing to secure the land where the two dams were to be constructed.

The firm says KVDA and the National Lands Commission (NLC) should answer for the failed projects.

“The KVDA and NLC materially impeded the progress of Arror and Kimwarer dam projects by failing to acquire the necessary land, rendering onsite work impossible. It was therefore impossible to accomplish the work on dam sites which did not exist as secured acquisitions, with inhabitants who were not relocated, forests which were not cleared and which they did not have access to,” the argument filed by CMC’s lawyers Coulson Harney, reads.

CMC says KVDA had on several occasions asked the Kenya Forest Service (KFS) to clear the area for construction to begin. However, it claims KFS told the agency to look for alternative land instead of chopping down trees on the site.

“In early 2017, KVDA proposed but did not request authorisation from the Kenya Forest Service regarding implementation of Kimwarer and Arror dam projects. KFS objected to the forests as the site for the dams, instead advising the KVDA to look for alternative sites.

“Under the contract, KVDA was responsible for securing the land necessary for the second petitioner to begin construction.”

CMC also claims it was ready to work on-site, but KVDA had not compensated residents whose parcels of land were to be hived off. To date, the firm states KVDA has not bought the land to allow construction.

The company wants the High Court to quash the charges against it. It says problems existed before it signed the contract for the projects and they have never been resolved.

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