High Court quashes AG advisory on Digital Super Highway tender

High Court Judge Lawrence Mugambi declared the October 2024 advisory unconstitutional, null and void, ruling that the Attorney General had assumed a mandate specifically vested in the Ethics and Anti-Corruption Commission (EACC).

"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," reads the order 

The advisory had purported to absolve the procurement relating to the award of the Digital Super Highway Backbone and Metro framework contract to Nightigale (EA) Limited.

Justice Mugambi has, however, declined to determine whether the tender was actually tainted by conflict of interest, directing that the allegations first be investigated by the EACC.

"The petitioner remains at full liberty to petition the Ethics and Anti-Corruption Commission for formal investigation. Alternatively, the Commission may, on its own motion, decide to initiate such an investigation," ruled Justice Mugambi.

The judge said the petitioner had moved to court prematurely without first invoking the jurisdiction of the anti-corruption agency, which has the investigative tools and expertise to establish allegations concerning shareholding changes, proxy arrangements and beneficial ownership.

Justice Mugambi said the court cannot bypass the EACC and assume its investigative mandate.

He further ruled that the petitioner remains free to lodge a formal complaint with the EACC, which can also initiate investigations on its own motion.

The case involves the Digital Super Highway project, which the petitioner says is expected to cost more than Ksh.15 billion, with the first phase allocated Ksh.5 billion and the second phase Ksh.10 billion.

The petitioner had questioned the award of several contracts to Nightigale Enterprises Limited, now known as Nightigale (EA) Limited, alleging that the company had direct links to the first respondent.

Concerns were also raised over changes in the company's name, officials and shareholding, as well as alleged proxy arrangements and beneficial ownership.

Justice Mugambi said it would be premature for the court to make a determination on the conflict-of-interest allegations before the investigative agency has had an opportunity to establish the facts.

The judge consequently applied the doctrine of constitutional avoidance and declined to proceed to a full determination of the conflict-of-interest question.