Former Treasury Cabinet Secretary Henry Rotich says he was unlawfully charged in connection with fraud at the multibillion-shilling Arror and Kimwarer dams.
Rotich was last year accused of flouting procurement procedures in awarding a contract worth billions of shillings for the construction of the two dams to Italian firm CMC de Ravenna.
He wants the multiple counts that include abuse of office, conspiracy to defraud the public, failure to comply with guidelines relating to procurement, and committing an offence of financial misconduct quashed.
Among his co-accused is former Treasury Principal Secretary Kamau Thugge.
According to Rotich in court papers, the alleged procurement violations can only be committed by the accounting officer or employees in the procuring entity - the Kerio Valley Development Authority.
He says the National Treasury or himself has no role to play in procurement matters of a procuring entity, otherwise it would defeat the very purpose of securing accountability in procurement matters.
“I am not the accounting officer or employee of the procuring entity (KVDA) or the parent ministry and furthermore, the Ministry of Environment, in a letter dated March 2016 stated that the board of directors of KVDA approved development of the two dams.”
The former CS claims that the prosecution documents demonstrate there was prior planning including a Cabinet directive dated August 21, 2009, for implementation of Arror Dam.
According to him, it is the duty of KVDA and the oversight ministry to ensure that procurement procedures ,which include project planning, are adhered to.
Rotich says he was authorised by law to sign all financing agreements on behalf of the government of Kenya. This was done after legal clearance by the Attorney General.
“It's absurd that the DPP and EACC chose to charge me while the AG is not charged in this respect. This is an indication of selective prosecution that cannot stand the test of objectivity,” he says in the court papers.
It is his view that the charges against him should be quashed as it was the opinion of former Auditor General Edward Ouko that the loan borrowed met government-to-government criteria.
He says the DPP and the EACC misunderstood the nature of the commercial contract agreements between KVDA and the contractor.
“The DPP’s failure to apply the applicable law to Engineering Procurement Construction and Financing mode of agreement has given rise to the impugned charges,” he says.
