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.
(VIDEO: Sh1.2trn railway for East Africa)
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.
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.