Solicitor General Shadrack Mose is facing fresh questions over a legal opinion that effectively cleared the Communications Authority of Kenya (CA) to process payments connected to Nightigale Enterprises Limited, a company linked to businesswoman and former CA chairperson Mary Wambui Mungai.
The controversy centres on the Digital Super Highway Backbone and Metro project and a framework contract identified in the legal opinion as Tender Ref. No. ICTA/OT013/2022-2023, dated June 26, 2023.
Documents seen by leaked.co.ke show that the opinion examined questions surrounding Wambui’s participation in CA board decisions and whether her association with Nightigale created a conflict of interest.
The opinion ultimately found no basis, from the documentation reviewed, to expect that Wambui knew Nightigale would participate in the procurement or that the company was intended to receive an award.
But questions surrounding that conclusion are refusing to disappear.
Wambui Sat in Meeting That Approved Project Financing
Of particular significance is paragraph 48 of the opinion, which acknowledges that Wambui participated in the CA Board’s 119th Full Board Meeting, where financing and procurement budgets for the GoDTA projects were approved.
The opinion, however, draws a distinction between those approvals and the subsequent procurement process.
It argues that because procurement was being undertaken by the ICT Authority, Wambui could not reasonably have been expected to know beforehand that Nightigale would participate in the tender or was intended to receive an award.
It consequently found no basis from the documents reviewed for expecting her to declare a conflict at that particular board meeting.
The opinion goes further, reasoning that making such a declaration before Nightigale’s participation was known could itself have created an inference that Wambui possessed advance information about the procurement.
That reasoning is now at the centre of questions being raised about the handling of the matter.
Confidential Source Raises Fresh Questions
Our team has separately received information from a source who requested anonymity because of the sensitivity of the matter.
The source has made allegations concerning communications surrounding the Nightigale controversy which, if independently substantiated, could raise further questions about the circumstances in which the matter was handled.
We withholding details capable of identifying the source and has not independently verified the contents of the alleged communications.
The allegations therefore should not be treated as established fact.
However, when considered alongside the documented legal opinion, they underline the need for greater transparency about what information was available to the relevant officials, when it became available and what steps were taken to investigate any potential conflict of interest.
Mose Opinion Cleared Perhaps the most consequential section is paragraph 65.
After considering the issues placed before his office, Mose advised the CA Director-General that the Authority could proceed with the requisite payments relating to the Nightigale contract and any related framework contracts.
The approval was not unconditional.
According to the opinion, payment was subject to confirmation that the necessary supporting documents including certified invoices had been received and that the contracted works had been delivered according to the contract.
Nevertheless, the practical consequence of the opinion was significant: the legal obstacle to processing payments was removed, provided the contractual requirements were satisfied.
That raises an important public-interest question.
Was the potential conflict surrounding Wambui and Nightigale investigated deeply enough before such advice was issued?
Questions Mose Needs to Answer
The issue is no longer simply whether procurement was technically conducted by ICT Authority rather than CA.
The bigger question is whether Wambui’s position as CA chairperson, her participation in decisions involving financing for the wider programme and her alleged links to a company participating in the resulting procurement created circumstances requiring enhanced scrutiny.
There is no evidence in the excerpts reviewed by Kenya Today establishing that Mose personally benefited from the procurement or committed a criminal offence.
Neither do the documents establish that Wambui improperly influenced the tender.
But the public deserves answers about the evidential foundation upon which such an important legal conclusion was reached.
What investigations were conducted to determine when Wambui first became aware of Nightigale’s participation?
Was Nightigale’s ownership and beneficial ownership examined?Were communications between individuals involved in the procurement reviewed?
Was the relationship between the CA financing decisions and ICT Authority’s procurement sufficiently examined?
And crucially, did investigators establish whether anybody associated with Nightigale had access to information about the project before the procurement process?
These are questions that cannot simply be answered by pointing out that ICT Authority conducted the procurement.
Public Money Demands Higher Standard
The Nightigale controversy touches several public institutions and potentially substantial amounts of taxpayers’ money.
That makes transparency particularly important.
A legal opinion permitting payments does not, by itself, prove wrongdoing. Equally, obtaining legal clearance should not prevent legitimate scrutiny of how the underlying decisions were made.
Mose’s opinion provides his legal reasoning.What Kenyans now deserve is the full evidentiary trail behind that reasoning.
The Communications Authority, ICT Authority, Solicitor General’s office and Wambui should consequently provide comprehensive responses addressing the procurement, potential conflicts, ownership interests and circumstances leading to the decision to allow payments to proceed.
Out editorial team will continue examining documentation surrounding the Nightigale contracts and has invited the individuals and institutions concerned to respond to the questions raised.
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