Is DPP Haji losing steam over Arror, Kimwarer dams scandals?

Former Treasury CS Henry Rotich (right) with his other accused persons in the Arror and Kimwarer dams scandals. [Collins Kweyu, Standard]

In July 2019, Director of Public Prosecution Noordin Haji promised fire as he ordered the arrest of former Treasury CS Henry Rotich over the multi-billion shillings Arror and Kimwarer dams scandals.

A confident and tough-talking Haji declared to the public through a press conference on July 22 2019 that it will not be an easy walk for the 26 suspects as evidence collected showed a mega corruption heist where the government officials allegedly stole public funds in a carefree manner. But three years and two months down the line since the suspects were arrested and charged, nothing much has happened as questions start to emerge whether the prosecution has reached a dead end with the promise of nailing the accused persons.

Within the duration, only one witness has testified out of the over 30 the prosecution indicated they will call with the hearing hitting a snag last week when the second witness said he was not ready to testify. It was the decision of the witness, Gideon Rotich, to decline to testify and ask for more time to prepare that lifted the lid on the intrigues being faced by the Prosecution in handling the Sh63b case against the former Treasury CS and his co-accused.

Senior Deputy DPP Alexander Muteti told trial magistrate Lawrence Mugambi that it was becoming difficult to prosecute the case over alleged interference with witnesses.

Prosecution nightmare

“What we anticipated to be a smooth trial has turned to be a nightmare. It is a shock on us especially on the security of witnesses where a pattern is emerging which is not only shocking but can disturb the mind of any reasonable prosecutor,” said Muteti.

The claims opened a can of worms in which the Defence lawyers fired back claiming that Arror and Kimwarer dams scandals was built on quick sand and orchestrated by an ‘orphaned Director of Criminal Investigation’ who instigated the case for political reasons. Lawyers Kioko Kilukumi and Katwa Kigen argued that the DPP had resorted to politicising the case to gain public sympathy after realising that that they have no case against the accused persons.

The intrigue within the corridors of justice continues to overshadow a benevolent project which started in 2015 as a mega-project to change the face of Elgeyo Marakwet County residents and parts of the North Rift. The two dams were among Retired President Uhuru Kenyatta’s flagship projects which were to be implemented by the Kerio Valley Development Authority (KVDA).

For the Arror multi-purpose dam, the objective was to generate 60MW of Hydro Electric Power (HEP), expand irrigation land by additional 62,000 acres to support food security, provide water for 50,000 households and to support forest conservation The Kimwarer Multi-Purpose Dam and Hydropower Project on the Kimwarer River was to produce 20MW of electricity through development of two HEP along the Kimwarer River, expand the area under irrigation by 50,000 acres and supply water to the residents.

It was envisaged that once the multi-purpose dams were complete, they would contribute to electricity supply in the country, improve food security, guarantee water supply and offer direct employment to more than 3,000 people. But all these promises came to halt when the DPP disclosed the alleged fraud by claiming that what was meant to benefit the public turned out to be a cash cow where the initial cost of Sh46 billion was inflated to Sh63 billion.

Mr Haji had claimed in his statement in July 2019 that although there was nothing to show for the four years the project had been launched, the Government had made advance payments totaling Sh19.7 billion as commitment fee, insurance and other costs. The DPP gave a breakdown of how the money was lost in which Sh11 billion for insurance was paid upfront while the Treasury borrowed another Sh4.6 billion to pay interest in advance on the principle amount for a project which has not begun to date.

Haji said a further Sh643 million was released by the Treasury to compensate and resettle those who were to be affected by the two dams projects, but there was no evidence that such land was acquired.

“If the projects were carried in adherence to the law and existing policies for safeguarding public interest, then it should not have cost Sh63 billion. We have evidence to prove Sh19,714,366,991 was lost through a well-choreographed scheme to defraud public funds,” said Haji.

He went ahead to approve the charges against Mr Rotich, former Treasury PS Kamau Thugge, former East Africa Community PS Susan Koech, Treasury Chief Economist Kennedy Nyakundi, director of resource mobilization Jackson Kinyanjui and Inspector General of State Corporations Titus Murithii.

Others were former KVDA boss David Kimosop, William Kipkemboi, Paul Serem, Francis Chepkonga, David Onyango, Patrick Kiptoo, Elizabeth Kebenei, Esther Jepchirchir, Moses Kipchumba, Nelson Korir, Isaac Kiiru, Patrick Kipsang, Fredrick Towett, Jotham Ruto and Charity Mui. Former National Environment Management Authority boss Geoffrey Wahungu and his two officials David Ongare and Boniface Lengisho. Italian Company at the centre of the scam CMC Di Ravenna and its director Paolo Porcelli were also targeted to face the charges.

Plea negotiations

The then DCI boss George Kinoti moved first to arrest the suspects and on July 23 2019, they were brought to court in a speculator manner to face the over 40 charges in two separate files. In the first file the Prosecution alleged that the accused persons conspired with directors of CMC Di Ravenna to defraud public funds in the construction of Kimwarer dam.

“Between 2014 and 2018, you conspired to engage in a scheme to defraud the government USD244,422,163 (Sh25 billion) in respect of Kimwarer multi-purpose dam by entering into a commercial loan while disguising it as a government to government loan,” read the charges.

According to the prosecution, Rotich and Thuge lied that the loan was guaranteed by the Italian government while knowing that it was a concessional agreement where the Italian company was to be borrower and financier and not the Kenyan government. Similar charges were brought against the accused in second file where it was alleged that they conspired to defraud the government USD277,407,605 (Sh28 billion) in the construction of Arror multi-purpose dam.

The charges disclosed that the treasury, KVDA and NEMA were all involved in the chain of activities which the prosecutors described as a well choreographed syndicate to steal from the government. Treasury officials were said to have initiated the contract negotiations with the Italian firm, KVDA approved it while NEMA irregularly issued an environmental assessment approval while aware that the project was not viable.

But as soon as the accused took plea, the case started encountering intrigues which delayed commencement of the hearing. First, some of the accused persons approached the DPP for negotiations to have a plea bargain to have their names dropped from the charges. The DPP then reported to court that he had agreed to drop charges against 15 accused persons including the two former principal secretaries, Thugge and Koech who were then converted to State witnesses.

This did not go down well with the remaining accused persons who had also written to the DPP to reconsider the decision to charge them, with the defence lawyers claiming that some of them were enticed with job reinstatement to testify against their colleagues. The first witness, Charity Mui, who was initially charged but later turned to State witness was confronted with the question, but she denied that she was enticed with getting back her job, salary and allowances.

After the DPP dropped charges against some of the accused, Rotich was left to carry the cross alongside Kimosop, Nyakundi, Wahungu, Kinyanjui, Kipkemboi, Kipkoech, Chepkonga and Muriithi.