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The Ethics and Anti-Corruption Commission (EACC) is embroiled in a tussle with the Cabinet Secretary for Water and Sanitation, Alice Wahome, for failing to suspend the head of a water agency.

The anti-graft agency wants Wahome to suspend Water Works Development Agency CEO Eng Michael Thuita over a tender probe involving his agency.

EACC Chief executive officer Twalib Mbarak in the letter to the CS says that Thuita had been adversely mentioned in the award of some tenders by the agency and was likely to interfere with investigations.

In the letter dated May 24, Mbarak say the anti-graft agency is investigating procurement irregularities in the award of tenders in the construction of Ruiru-II, Karimenu and Kitui Matuu Water Projects undertaken by the agency in which Thuita has been adversely mentioned.

“The CEO, being the accounting officer of the agency was involved in the implementation of these three projects. Therefore, there is a likelihood that his being in office will interfere with the smooth provision of documents and persons who may be called upon as witnesses,” reads the letter.

It has, however, emerged that the tenders were awarded long before Thuita took over the position.

Tender documents

Documents in our possession indicate the Karimenu II Dam was first advertised on February 7, 2013 and the contract agreement was signed on May 9, 2014.

Later 15 per cent of the contract amount to the contractor of US dollars 35.4 million (Sh4.9 billion) by the employer was made on May 26 2017, three months before Thuita joined the agency. The tender was awarded to AVIC INTL Project Engineering Company.

In the case of the Ruiru II Dam, an advertisement for an expression for interest for funding design and building was submitted on March 16, 2013.

After evaluation of the tender documents, it was awarded to Vinci Construction Grand Projects on May 25, 2017 and the contract was signed five days later.

The contention between the anti-graft agency and the Water CS has been the failure by the latter to suspend Thuita as advised.

Wahome has, however, demanded to be furnished with a complaint file or letter to enable her to heed the demands to suspend Thuita. She maintained that there was inadequate basis to justify the suspension request against Thuita and the alleged crimes.

The Ethics and Anti Corruption Act, 2015 stipulates the functions of the commission among others, to investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption, bribery or economic crimes or violation of codes of ethics or other matter prescribed under this Act, the Anti-Corruption and Economic Crimes Act or any other law enacted pursuant to Chapter Six of the Constitution.

The CS, in her letter, argues that suspending an officer is not within the purview of her office.

“The subject matter should be investigations into procurement illegalities in the award of tender of projects mentioned in your said letter and not suspension as referenced,” Wahome says in her letter.

She adds: “To enable me to consider the recommended action of suspension of the officer alleged to have been involved in the irregularities, kindly let me have the letter of complaint or the complaint file.”

Mbarak said the request is in line with provisions of the Leadership and Integrity Act which provides for the suspension of State or public officers mentioned in graft allegations.

“Regulation 25(2) of the Leadership and Integrity Act provides that suspension shall apply where the officer is likely to conceal, alter, destroy, remove records, documents or evidence,” wrote Mbarak.

He said the Act also provides for the suspension to ensure the officer in question does not intimidate, threaten or otherwise interfere with witnesses or the investigations in any manner.

Mbarak said in the application of Regulation 25(3) of the Act, a suspended State or public officer shall be placed on half pay pending conclusion of investigations.

“It is advised that you consider invoking the above-cited provisions and take administrative action against the CEO to pave the way for investigations,” he told Wahome.