The High Court has quashed an advisory opinion by the Attorney General that cleared the procurement of part of the government’s Digital Superhighway project of allegations of conflict of interest, ruling that the opinion encroached on the constitutional mandate of the Ethics and Anti-Corruption Commission (EACC).
Justice Lawrence Mugambi ruled that the Attorney General went beyond her mandate when she considered the facts surrounding the procurement and issued an opinion absolving the process and the parties involved of conflict of interest and integrity breaches.
The dispute arose from a petition filed by the Consumer Federation of Kenya challenging the constitutionality and legality of two tenders for the Digital Superhighway project: Tender No. ICTA/OT/11/2022-2023 for Last Mile and Public Wi-Fi connectivity and Tender No. ICTA/OT/13/2022-2023 for the Digital Superhighway Backbone and Metro framework contracts.
At the centre of the petition were allegations concerning contracts awarded to Nightigale Enterprises Limited, now known as Nightigale (EA) Limited, and alleged links between the company and the then chairperson of the Communications Authority of Kenya.
The petitioner alleged that changes in the company’s shareholding structure, including changes involving the chairperson’s daughter, raised questions over beneficial ownership, proxy arrangements and possible conflict of interest.
The respondents denied wrongdoing. They maintained that the Communications Authority had transferred procurement responsibility to the ICT Authority and that the CA chairperson had resigned as a director and shareholder of Nightigale Enterprises before the tender process. They further argued that there was no evidence that she participated in or influenced the procurement process.
The court, however, found that determining whether the circumstances amounted to conflict of interest required an investigation falling primarily within the mandate of the EACC. Justice Mugambi said the EACC has the constitutional and statutory mandate, investigative tools and expertise necessary to investigate the alleged changes in shareholding, proxy arrangements and beneficial ownership, including tracing any money paid under the contracts.
The judge consequently found that by issuing an opinion absolving the procurement process of conflict of interest, the Attorney General had unconstitutionally assumed a role reserved for the anti-corruption commission. “The resulting opinion is thus unconstitutional and of no legal effect,” the court held. However, the High Court stopped short of determining whether the Digital Superhighway procurement itself was actually tainted by conflict of interest.
Justice Mugambi held that the petitioner had moved to court prematurely without first allowing the EACC to investigate the allegations. The court said it could not bypass the institution constitutionally and legally mandated to investigate such claims. Applying the doctrine of constitutional avoidance, the judge therefore declined at this stage to make a final determination on whether the procurement was marred by conflict of interest.
The court nevertheless declared the Attorney General’s October 1, 2024 advisory opinion unconstitutional, null and void and issued an order of certiorari quashing it.
