PHOTO | KEVIN ODIT President Uhuru Kenyatta with Deputy President
William Ruto during the launch of the railway in Mombasa on Thursday.
NATION MEDIA GROUP
Even as Deputy President William Ruto
stood next to President Uhuru Kenyatta during the ground-breaking
ceremony for the standard gauge railway on Thursday, details are
emerging of last-minute efforts by his office to ditch the project.
In
a letter dated October 28, the Deputy President’s office asked
Attorney-General Githu Muigai to give an opinion on the legality of the
project, with a view to halting the process due to “numerous anomalies
in the tendering award process”.
“By this letter, we
kindly request your office to expeditiously review the project documents
and to render the requisite legal opinion regarding the same on or
before 5th November 2013,” the letter signed by the Chief of Staff, Ms
Marianne Kitany, reads in part.
“It is imperative that
His Excellence the President should not be seen as giving the project
his seal of approval unless all the required procedural and legal steps
have been undertaken, and the project is one which is completely above
board.”
The letter is copied to Transport Cabinet
Secretary Michael Kamau, the Public Procurement Oversight Authority and
Mr Joseph Kinyua, the Chief of Staff in the Office of the President.
Mr
Kamau has defended the project saying there was no irregularity
occasioned by failure to conduct a competitive bidding, adding it was a
government-to-government agreement.
The Ministry of
Transport and the Kenya Railways have pushed for this position even when
they appeared before Parliament two weeks ago despite having received
the AG’s opinion faulting the reasoning.
Interestingly,
it is the current Principal Secretary for Transport, Mr Nduva Muli, who
was the managing director at Kenya Railways when the deal was struck.
The
AG’s opinion questions why Mr Muli, in his capacity as managing
director of Kenya Railways, flip flopped in choosing the procedure to
follow, only picking two processes which do not allow competitive
bidding.
In an opinion rendered to Public Procurement Authority, the AG faulted the process used to award the tender.
In
his opinion, which is likely to carry weight in court in a case filed
by a trade union, given that he is the chief government legal adviser,
Mr Muigai noted that the tender award process followed by Kenya Railways
Corporation “raised suspicion”.
“We have reviewed the
documentation of the project and have detected numerous prima facie
anomalies in the tendering award process and documentation contrary to
the Public Procurement and Disposal Act 2005,” the letter reads in
part.
PROCUREMENT ACT
The
AG faulted the use of the government-to-government negotiated loans to
avoid following the provision of the Public Procurement Act which
requires all projects above Sh500,000 to use open tender to pick
suppliers.
In a letter dated October 3, 2012, Kenya
Railways awarded China Road and Bridge Corporaton the contract based on
direct procurement process.
However, in an apparent
afterthought, Mr Muli wrote to China Road and Bridge Corporation in a
letter dated March 14 to withdraw the letter awarding the contract.
This
after the PPOA questioned the process and demanded Kenya Railways to
justify why they were using a direct procurement process instead of
competitive bidding.
On March 27, Kenya Railways wrote
to PPOA, saying they had cancelled the tender and explained this was
informed by the fact that the procurement is a government-to-government
contract which is exempt from the Procurement Act.
“Our
report submitted to you dated October 2, 2012 showing this as a direct
procurement was in error, and we wish to withdraw the same,” Mr Muli
wrote.
It is this flip flop by Kenya Railways that made
the AG to question why the corporation was avoiding transparency in
awarding the contract.
“I must record that it is
worrying that a procuring entity can pick and choose alternate
procurement methodologies ... neither alternative admits of open
competition,” the AG noted.
Equally, the AG added,
even if the contract was a government-to-government one, Kenya Railways
was not exempt from conducting competitive bidding in selecting the
winner.
“Government-to-government agreements also
demand compliance with procedures outlined under the Public Procurement
Act,” says the AG in his opinion.
Prof Muigai further
told the PPOA that “government to government” agreements are not a
method of selecting suppliers or supporting awarding of a contract.
In
what appeared to be a call to respect Kenya’s sovereignty, the AG
further noted that “development partners – China in this case – should
align themselves to the systems, standards, procedures and development
priorities of recipient states in order to promote accountability.”
Mr
Kamau, however, seems to fault this, telling Parliament that Kenya had
no alternative other than to follow the Chinese rules as Beijing was the
one footing the bill.
“… We had to follow their
(China’s) procurement procedure,” Mr Kamau told the House. The AG,
however, says following the procurement law is mandatory when taxpayers’
money is being used to fund a project. In this, the funding is shared
at 85:15 between the Chinese loan and funding from taxpayers. Taxpayers
are already feeling the pain after the imposition of a 1.2 per cent
railway development levy.
It has also emerged that
members of the parliamentary committee on Transport, Public Works and
Housing, who were investigating the matter, are fighting over a trip
they made to China as part of their investigations on the tender.
The
committee, chaired by Starehe MP Maina Kamanda, is investigating why
the tender was not subjected to competitive bidding and whether China
Road and Bridge Corporation has the capacity to implement the project.
On
return to Kenya the committee members have been accusing each other of
having received preferential treatment while in China. None of the MPs,
however, wants to go on record. At the same time, the High Court has
allowed a trade union to contest the award of the tender
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