The National Treasury Cabinet Secretary Henry Rotich distanced
himself from the controversial tendering processes for the two dams that
saw phantom companies paid Sh21 billion during his questioning last
week.
Mr Rotich, through his lawyer
Katwa Kigen, maintained that the he had nothing to do with the tendering
processes that led to the payments as they were handled by the
respective line ministries and agencies.
PROCESSES
Mr Rotich also sought to explain the Sh21 billion said to have been paid to phantom companies with no work done.
The
Director of Public Prosecutions (DPP) Noordin Haji had noted that
preliminary investigations had established that a large number of
government officials were involved in the scandal.
He
added that the investigators drawn from the Directorate of Criminal
Investigations (DCI) and prosecutors from the DPP’s office are looking
at the entire tendering process, the awarding of tenders without project
designs, attempts to manufacture designs after the fact and failure to
secure any of the land required for the projects.
The teams are also investigating the disputed
ownership of the land for the projects, the failure to compensate
landowners, the payment of Sh21 billion to contractors notwithstanding
the anomalies in the tendering processes and the legal status of the
alleged contractors in their home countries.
Mr
Kigen confirmed that the question relating to the procurement and
tendering was put to the CS, who said he was not involved at all in the
processes.
“Issues of procurement and
awarding are all done by the procuring entity, supervised by their line
ministries. These processes do not involve CS Treasury. The CS was
asked (the questions) and he gave the above reply,” Mr Kigen stated.
DESIGNS
“KVDA
and the two dams (Arror and Kimwarer) fell under a number of ministries
at different times in the course of this project,” he said.
According
to Mr Kigen, Mr Rotich explained to the investigators that the roles of
the agencies and the line ministries included ensuring that proper
procurement processes in law was done, projects were implemented within
the applicable laws and contract terms and ensure payment for work done.
He
noted that contrary to Mr Haji’s assertions that there were no project
designs, Mr Rotich had explained to the investigators “the correct
position” thus: “EPC+F projects are internationally recognised
contractual devises. The contract devise entails and incorporates
'design'. It is therefore erroneous to say that the contracts herein
which was an EPC+F contract was faulty because it lacked designs. The
contract itself triggers the designing,” he explained.
On
the huge number of government officials Mr Haji said were involved in
the scandal, Mr Kigen said his client expected that those involved would
be questioned as well.
“We are assuming other people will also be called to assist in the ongoing investigations,” he noted.
Mr Rotich, according to the lawyer, also explained the amounts paid, which Mr Haji put at Sh21 billion.
AGREEMENT
“One
must appreciate that there are three milestones in such contracts (a)
procurement (b) commercial contract (c) facilities agreement. The
commercial contract sets out the contract price and terms. It is on this
contract that Sh7.1 billion (subject to exchange rate) was advanced to
the contractor for mobilisation against a performance bond/security.”
He
further explained that the balance of the about Sh13.9 billion was paid
under the facilities agreement for arranging, structuring and agency,
commitment and insurance fees all at rates that are internationally
applicable.
“These are charges and
fees paid to secure the loan, and are neither paid to the contractor nor
are they part of contractual sum under commercial contract,” he said,
in an attempt to dispel the DPP’s claims that the Sh21 billion was paid
in an irregular manner.
“All these
are internationally applied procedures and payments, Kenya and world
over have infinite similar contracts where this process and rates have
been applied and paid,” he added.
PROPERTIES
Mr
Haji in his statement had noted that the investigators were training
their eyes on properties that may have been acquired from the proceeds
of the Sh21 billion payments.
“Most
crucially, we must get a handle on more than Sh21 billion that has
already been paid out, trace where and whom every shilling has been paid
to, trace and establish any intended corrupt payments,” he noted.
“I
have directed that financial investigations that may lead to
identification of any properties that are proceeds of crime be given top
priority to ensure that any ensuing prosecutions will not only be
limited to securing convictions against the perpetrators of the
fraudulent activities, but also be predicated upon recovery of public
funds that may have been improperly expended,” he noted.
Mr
Haji’s statement came only hours after Mr Rotich spent long hours being
questioned at the DCI headquarters on Kiambu Road in Nairobi.
DAILY NATION
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