• Ceremonial event at State House on February 6, 2015, when the Ministry of Health signed the deal with five international suppliers
• Upon the conclusion of negotiations, the ministry was to submit a final draft contract to the AG for review — but never did
Image: COURTESY
Attorney General Paul Kihara has disclosed his office did not approve Sh63 billion contracts for medical equipment, deepening the controversy.
Kihara told the Senate ad-hoc committee probing the deal he did not review and approve final contracts that the Ministry of Health signed in great fanfare with international suppliers.
Counties reject
The counties said they do not want the equipment never wanted it, won't pay and consider that the deal was being forced down their throats.
Further, the AG said the Health ministry did not engage his office in the initial stages of the programme — until it received a letter requesting the procurement of Iseme and Kamau Associates to act as legal adviser to the programme.
He said his office, then under his predecessor Githu Muigai, only endorsed the ceremonial signing of the expression of intention to contract, pending further negotiations before signing final contracts.
The counties said they do not want the equipment never wanted it, won't pay and consider that the deal was being forced down their throats.
Legal problems
The AG said there were outstanding issues with the contracts that were signed at State House and that he had advised the ministry to delay, further negotiate and agree on the final text.
The ceremonial event was held at State House where the Ministry of Health signed the deal with five international firms to supply medical equipment.
The firms are General Electric East Africa Services Limited, Esteem Industries Inc, Philips Medical Systems, Bellco SrL and Shenzhen Mindray Bio-medical Electronic Company Limited.
The AG said there were outstanding issues with the contracts that were signed at State House and that he had advised the ministry to delay, further negotiate and agree on the final text.
“We note that there are still a number of outstanding issues relating to these contracts and pursuit to a clause of the contract as read with schedule paragraph 5.1 and 5.2 of the contracts, the parties have undertaken to conclude the negotiations after the scheduled signing on the 6th of February at which His Excellency will witness,” a letter dated February 5, 2015, by former AG Muigai said.
Kihara told the committee, led by Isiolo Senator Fatuma Dullo, that upon the conclusion of the negotiations, the ministry was supposed to submit a final draft contract and other addenda to the State Law office for review and approval.
The Ministry never submitted the documents for approval.
“It was agreed that the five contracts for the purposes of the ceremonial signing would have wording to the effect that the same were mere expressions of intention to contract and were subject to further negotiations between the parties,” Solicitor General Kennedy Ogeto said. He accompanied the AG.
“This office was not involved in the additional and auxiliary contracts related to MES such as funders' direct agreement, subtracts and only came to learn of them post facto," he said.
State counsel Sharon Irungu, who also accompanied Kihara, said the ministry never submitted any documents but instead kept referring to the expression of intention to contract as the final contract.
At the time OAG reviewed these contracts, a ceremonial signing was to happen. We advised that the contracts were still in the nursing stages and if at all there was supposed to be further negotiations and the final contract would be signed.State Counsel Sharon Irungu
“As an office, we never received the copies of the texts that were signed after the ceremonial event. Nevertheless, the Ministry of Health kept referring to this particular contract as the contract,” Irungu said.
However, the committee took issue with the AG, asking how his office could have advised the ministry to sign ‘expression of intention to contract’ yet contracts are always legal and binding.
“When you sign a contract, you enter into a legal obligation. How could the Attorney General advise the ministry to have a ceremonial agreement with outstanding issues?” Bungoma Senator Moses Wetang'ula posed.
Irungu explained that the office allowed for the signing of the State House event to allow for the ceremony that had been planned to take place.
“At the time the OAG reviewed these contracts, there was a ceremonial signing that was to happen. We advised that the contracts were still in the nursing stages and that if at all there was supposed to be further negotiations and the final contract would be signed,” she said.
Transport CS James Macharia, who headed Health ministry at the time the contract was signed, defended the programme, saying it was long overdue to fix the broken down health system in the counties.
“We carried out a needs assessment and met with county executives in charge of health from the 47 county governments and later met the governors to take them through the project,” Macharia said.
(Edited by V. Graham)