Why High Court quashed Attorney General's opinion on Digital Superhighway tender

The High Court has quashed an Attorney-General's advisory opinion that had cleared the way for payments connected to a multi-billion-shilling Digital Superhighway contract awarded to Nightigale (EA) Limited.

Justice Lawrence Mugambi on September 4 ruled that the Attorney-General's office exceeded its constitutional mandate by determining a conflict-of-interest question reserved for the Ethics and Anti-Corruption Commission (EACC).

Mugambi in turn declared unconstitutional, null and void an advisory issued by Solicitor-General Shadrack Mose on October 1, 2024, which had purported to absolve the procurement from conflict-of-interest concerns.

The case arose from two Digital Superhighway tenders issued by the ICT Authority, identified as ICTA/OT/11 and ICTA/OT/13 of 2022-2023.

The project included the Digital Superhighway backbone and metropolitan fibre network and was expected by the petitioner to cost more than Sh15 billion, with the first phase estimated at Sh5 billion and the second at Sh10 billion.

The procurement was funded through the Universal Service Fund administered by the Communications Authority, while the ICT Authority was responsible for conducting the tender process.

However, the Consumer Federation of Kenya (COFEK) challenged the award of the contracts to Nightigale Enterprises Limited, later known as Nightigale (EA) Limited, raising questions over alleged links between the company and Mary Wambui, who was then chairperson of the Communications Authority board.

Mungai was appointed CA chairperson in December 2022 and subsequently resigned as a director and shareholder of Nightigale.

COFEK questioned the subsequent changes in the company's ownership, officials and shareholding, including allegations concerning proxy arrangements and beneficial ownership.

The Attorney-General's office later issued the advisory that cleared the procurement from the conflict-of-interest concerns and provided the legal basis relied upon by the CA in processing payments, provided contractual requirements had been met.

Justice Mugambi however in his Friday ruling set aside that opinion through an order of certiorari.

“The advisory opinion by the Attorney General via the letter Ref. AG/CONF/21/55/4 VOL II. (77) of 1st October, 2024 to the 2nd Respondent purporting to absolve the impugned procurement in relation to award of tender on digital superhighway backbone and metro (framework contract) to Nightgale (EA) Limited from conflict of interest is unconstitutional, null and void as it assumes the specific constitutional and statutory mandate conferred upon the Ethics and Anti-Corruption Commission,” the court ruled, finding that the opinion assumed the specific constitutional and statutory mandate given to the EACC.

The judge said the Attorney-General serves as the government's principal legal adviser but could not assume an investigative function assigned by law to the anti-corruption commission.

The court consequently did not make a finding on whether an actual conflict of interest existed.

Justice Mugambi said the EACC was the appropriate institution to establish the facts behind the allegations.

The judge pointed to issues that could require investigation, including changes in Nightigale's shareholding and ownership, possible proxy arrangements and the company's beneficial ownership.

“EACC is the appropriate forum to initiate the complaint for in-depth investigation given that it has the necessary investigative tools, and expertise to get into the bottom of the matter,” Justice Mugambi ruled.

He added that COFEK remained free to formally petition the EACC, while the commission could also initiate an investigation on its own motion.

The court applied the doctrine of constitutional avoidance, finding that it would be premature to determine the substantive conflict-of-interest question before the investigative process had taken place.

COFEK had sought more extensive orders, including declarations that the procurement was illegal and unconstitutional, nullification of the contracts and recovery of Universal Service Fund money.

The High Court did not grant those substantive remedies. In addition, the procurement transfer itself was upheld.

The court accepted that responsibility for the procurement had lawfully moved from the Communications Authority to the ICT Authority through a Deed of Transfer under Section 52 of the Public Procurement and Asset Disposal Act and Regulation 39.

As a result, the court found that the CA and its chairperson did not have direct responsibility for conducting the tender process.