THE dramatic twist and turns in the long-winding US$5, 6 million corruption saga wherein businessman Wicknell Chivayo was given a multi-million advance payment but failed to deliver a 100 MW solar power plant in Gwanda, has exposed double standards by top government officials and selective application of the law by some captured officers of the law, Zim Morning Post can report.
This follows a recent Supreme Court ruling on an appeal by the Prosecutor General, Kumbirai Hodzi, stating that Chivayo must answer to fraud charges emanating from an alleged embezzlement of a US$5.6 million advance payment for a feasibility study at the construction site five years ago.
This week the Supreme Court quashed the High Court ruling which acquitted Chivayo in inexplicable circumstances that saw an accessory to the alleged crime Stanley Chizhanje being convicted.
The whole ‘factual matrix’ of the matter is littered with massive inconsistencies giving rise to possibility of money (inducements) exchanging hands as Chivayo fights for freedom and to retain the lucrative contract.
The Engineering, Procurement and Construction (EPC) contract for the Gwanda Solar Power Project was signed on 23 October 2015, at a cost of $172, 848, 597.60 (excluding duties and taxes).
It emerged that last month government, through Energy minister Fortune Chasi, wrote a letter to Zimbabwe Power Company advising the power utility to abandon the fraud charges because government “cannot afford the luxury of continued litigation.”
He reasoned that the matter had taken too long yet not even a single megawatt of power was generated.
The other basis for abandoning the charges was that contractors had agreed to shave off part of the asking price from US$180 million to US$139 million.
A “credible team “ of transaction advisors including top lawyers Dube, Manikai and Hwacha was put in place and promised production 0f 10 megawatts in six months.
One of the major irony in the matter is that in September 2019, then ZPC board chair Stanley Kazhanje was convicted for receiving US$10 000 to influence results of the same controversial contract.
In an interview with this publication then, the Zimbabwe Anti-Corruption Commission (ZACC) chairperson Loice Matanda -Moyo contested the acquittal.
She said her organisation is seeking a leave to appeal since the other party (Kazhanje) has been convicted of the same charge.
“We are seeking a leave to appeal so that the acquittal is set aside,” Matanda -Moyo said.
She said since Zacc was armed with a conviction of Chizhanje, it defied logic that one party is punished while Chivayo was left scot free yet it ‘takes two to tango’.
“When I was appointed, Chivayo had already been acquitted so we allowed the Kazhanje case to proceed until it was finalised.
“That conviction alone should be reason enough to question why Chivayo is not on trial on the same case.
“Principles of justice require that fairness in dealing with the same case be employed so we have no option but to appeal the acquittal,” she said then.
Chivayo was acquitted of charges relating to the US$10 000 bribe which saw Kazhanje being convicted and slapped with a three year jail term but to serve an effective one year behind bars.
Matanda-Moyo’s revelation, therefore, left Chivayo’s acquittal skating on thin ice as was confirmed by the Supreme Court ruling this week.
The State managed to prove its case that, on October 23 in 2015, ZPC signed an Engineering Procurement and Construction (EPC) of a 100 Megawatt Solar Project with Intratrek and paid Intratrek $1 263 154 in advance for the implementation of the Gwanda solar project.
Intratrek in turn failed to fulfil its obligation, resulting in the management suggesting termination of the contract but Kazhanje upheld the contract after receiving the bribe from Chivayo in his Barclays account.
As reported by this publication in June last year, Chivayo had the backing of some senior managers such as Robson Chikuri who was the projects and technical director of the Gwanda solar project.
Documents shown that the USD$5,6 million which Chivayo received was paid in USD$200 000 batches per week in a move which was meant to sideline the board approval as the amounts were within Chikuri’s threshhold.
“Payments of such amounts (US$5 million) have to be approved by the board that is the reason why the money was paid in USD$200 000 batches, this was aimed at snubbing the board as it is the only authority which should approve such payments,” said an insider at ZPC.
Chikuri was appointed Projects and Technical Director and he was acting more as the accounting officer on that deal.
Sources allege that some senior managers gave false testimonies before the courts to clear Chivayo and Intratrek as they were receiving kickbacks from Chivayo.
“Some of them gave false testimonies in the courts when this issue was arrayed before the courts because they receive money from Chivayo.”
According to documents seen by Zim Morning Post some ZESA Board members questioned how Chivayo won the tender since he is an ex-convict.
Documents seen by this paper state that “The un-securitized advance payments were authorised through Payment Release Certificates (PRCs) that were signed by the following officers Managing Director, Projects and Technical Director and the Finance Director.”
“Ironically there was no progress at the project site against which the Payment Release Certificates were made – i.e. the certificates were fictitious,” reads the document.
“The Board was also not aware that Intratrek had been paid without an Advance Payment Guarantee (APG).
“The payments were made in small weekly amounts which were within the Managing Director’s threshold and thus did not need Board approval.”
Meanwhile, the ruling that High Court erred in interfering with the unterminated criminal proceedings before the trial magistrate, puts the local judiciary delivery system on an acid test.
Armed with the ruling, the National Prosecution Authority can proceed with the trial, but if government’s arm-twisting of ZPC to formally withdraw charges sail through, NPA will be left walking in quicksand- with Chivayo’s defence carrying more weight.