Rotich, eight others finally let off the hook in Sh65b dams scandal

Former Treasury CS Henry Rotich (centre) outside Milimani court. He is flanked by some family members and lawyer Kioko Kilukumi (right). [Collins Kweyu, Standard]

Former Treasury Cabinet Secretary Henry Rotich has been cleared of any wrongdoing in the Sh65 billion Kimwarer and Arror dams scandal.

In July 2019, the Director of Public Prosecutions (DPP) promised fire as he ordered Mr Rotich’s arrest over the multi-billion shillings scandal.

The DPP declared to the public through a press conference on July 22, 2019, that it will not be an easy walk for Rotich and other suspects as evidence collected showed a mega corruption heist.

The then DCI boss George Kinoti moved fast to arrest the suspects and on July 23, 2019, they were taken to court in a speculator manner to face charges.

Rotich was charged alongside his then Principal Secretary Kamau Thugge.

Along the way, the criminal case against Thugge (current Central Bank of Kenya governor) was dropped in a deal that he would testify against his former boss.

Watertight case?

But the hitherto watertight case promised by then DPP quickly crumbled and turned into a circus where the prosecution pushed for Milimani Anti-Corruption Court magistrate Eunice Nyutu to recuse herself.

When she stayed put, the prosecutors tasked to present the case turned the drama gears by calling witnesses and stating they had no questions to ask.

And yesterday, Nyutu acquitted Rotich and his eight co-accused.

She stated that out of the 49 witnesses, only eight testified and were cross-examined by the defense team.

In addition, she observed that 41 prosecution witnesses only took the witness stand but the prosecution opted not to ask questions.

The magistrate said that since the DPP failed to do his work, she had no option but to acquit the accused.

Rotich’s office was probably the most important one after President Uhuru Kenyatta and then Deputy President William Ruto.

In a corner office at the Treasury Building in Nairobi, Rotich’s signature meant abundance for the government, its agencies, counties and tenderpreneurs who sought money from the country’s purse.

Surrounded by bodyguards, a flag, and a chase car, Rotich wielded real power.

However, on July 23, 2019, his world turned upside down. He was charged with graft surrounding the Kimwarer and Arror dams’ saga and became the face of it.

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

The men and women who crowded his office slowly thinned and left him alone to answer to charges, which kept being amended.

After three years of dramatic trial, he was set free yesterday.

He had been charged alongside Kennedy Nyakundi, Jackson Njau, David Kipchumba, William Kipkemboi, Paul Koech, Francis Chepkonga, Titus Muriithi and Geoffrey Mwangi.

Phillip Nyachoti was among the lead lawyers for accused persons. He argued that the witnesses called did not come close to name or place a finger on his clients as the plotters and beneficiaries of the Kimwarer loot.

He said that curiously, all the witnesses presented by the State indicated that they did not know the accused persons prior to the case.

In court papers, Rotich said he was isolated for the hang.

Despite his long career as an economist, the criminal case was like a Sword of Damocles hanging on his head. Rotich claimed he was the sacrificial lamb in the whole saga.

In his papers filed by lawyer Kamunya Ng’arua, the former CS alleged 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 shoulder the burden.

Rotich asserted that he had no role in the procurement process and had no powers to direct the Environment Ministry or KVDA.

The former minister alleged that the Ethics and Anti-Corruption Commission (EACC) was aware of Wakhungu’s letter dated March 14.

The letter, he said, allegedly informed Treasury that KVDA directors had approved Kimwarer and Arror dams development, had procured and identified a contractor.

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

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 said it passed through the Cabinet, which was headed by former President Uhuru Kenyatta.  He accused the State of hounding him for merely undertaking a statutory duty as requested by a Cabinet colleague.

The 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 Thugge and CMC directors, among others. They denied the charges.

On the other hand, CMC filed a separate case on the same project. It accused two government agencies of failing to secure the land where the two dams were to be constructed.

The firm said KVDA and the National Lands Commission (NLC) ought 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 read.

CMC said 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.

CMC also claimed 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.

On the other hand, the DPP said that he opted to press charges against Rotich as the money was paid to a ghost company.  He said that CMC Di Ravenna’s names allegedly changed three times.

He said that based on investigations, lack of documentation on how the tendering process was done and the National Lands Commission and Kenya Forest Service not being involved, taxpayers were being bound into a deal to fund a nonexistent project.

In a 578-page reply to Rotich’s case, the DPP argued that while the bidder was CMC Ravenna-Societa Cooperativa, incorporated in Italy, the firm which was awarded the tender was CMC Di Ravenna and Aecom South Africa.

He claimed that although the firm which was issued with the letter of award was CMC Di Ravenna South Africa and the contract was signed by a joint venture of CMC Di Ravenna and Itenera JV Kenya Branch while payments were made to the CMC Di Ravenna-Itinera JV at Intesa Sanpaolo SPA Bank in London.

Ghost company

The DPP argued that at the time the contracts were executed, CMC Di Ravenna-Itenera JV was a ghost company as it had not been registered.

At the same time, the DPP argued that although another Italian firm, Itenere Spa of Italy cropped up, it was neither mentioned in the tendering documents adding that there is no information or data on the firm.

According to the DPP, although the Italian firm was folding, there was no proof to show that then minister had done due diligence.

Five firms ended up in the last stage of the bidding process. Sino Hydro emerged the best but its proposal that the employer ought to shoulder an additional Sh10 billion led to the tendering committee dropping it in favour of CMC Di Ravenna which was the second-best bidder.