BY SAM ALFAN.
Former Treasury Cabinet Henry Rotich and his co-accused in the Arror and Kimwarer dams scandal have urged the court to acquit them under section 210 saying the prosecution failed to prove any of the charges against them.
Rotich told the Milimani Anti-corruption Magistrate Eunice Kagure to acquit of all charges since Director of Public Prosecutions abandoned the case.
“The prosecution has not established a prima facie case against not only the 1 accused, but all the other accused persons. The prosecution intentionally and deliberately abandoned its case,” said the former Treasury boss under uhuru administration.
He further urged the court to consider returning a verdict of guilty of serious dereliction of public duty against the office of the Director of Public Prosecutions.
In the submissions, Rotich told the court that his prosecution was ill-advised from the start and the case was carried on the wings of extraneous political considerations.
“It was not mounted on the cogency of evidence of criminal culpability. It was bound to fail. It is a matter of judicial notice that during the campaigns for the 2022 General Election, rival political coalitions made political capital out of Arror and Kimwarer dam projects, giving a very clear indicium that the prosecution was instituted for the wrong motives,” submitted the former Treasury boss.
Rotich told the court he has had a long career as a public servant spanning over 25 years, rising through the ranks to become the first Cabinet Secretary for the National Treasury under the new Constitution, propelled by his integrity, honesty and hard work and he has never committed any offence before and is not a person who would commit the awful crimes alleged by the prosecutor.
He added that the narrative that money was lost or stolen was a fiction and the prosecution seems to have been in a fishing expedition hoping to catch the so-called “big fish” under a public opinion court mode.
He questioned that if indeed money was lost as the public was led to believe, how comes the Asset Recovery Agency(ARA) has not been able to trace any stolen loot and freeze it?
He added that they can’t because the funds allegedly branded stolen or termed by the prosecution as improper conferment of benefits were payment to SACE (an Italian export credit agency) for providing insurance cover to financiers; payments to lenders for interest; payments of commitment and loan structuring fees; and payments to contractor for mobilization to site all genuinely meant to facilitate implementation of the said projects.
Rotich added that it is not surprising that the two governments (Italy and Kenya) have reached an understanding to restart the projects that were stalled by bad politics and malicious prosecution.
He told the court that it should be pointed out at the outset, that there were two sets of agreements and the construction agreements between KVDA and the contractor produced in court and then there were the Facilities Agreements
He added that he did not execute the two construction contract agreements both dated 5th April, 2017 and there was no Privity of Contract. Accordingly, the 1 accused could not properly or improperly confer contractual benefits to the joint venture companies.
“I was under a statutory duty to execute the Facilities Agreements. Section 52 (1) of PFMA provides that the Cabinet Secretary or any person designated by the Cabinet Secretary in writing, is authorised to execute loan documents for borrowing by the national government,” Rotich told the court.
The former CS added that the joint venture companies were not parties to the Facilities Agreements and could not derive benefits from those Agreements. The parties to the Facilities Agreements were the government of Kenya and the financiers of the two projects.
He submitted that the loan agreements were in writing as required by the law and were executed by the Cabinet Secretary of the National Treasury as prescribed by the law. Before execution, the advice of the Attorney General was sought and obtained, confirming the legality of the process.
He said the prosecution failed to prove in what manner the execution of the Facilities Agreements was unlawful. “Accordingly, we beseech the court to acquit the 1st accused person,” he submitted.
