Solicitor General Shadrack Mose is facing mounting scrutiny over a legal opinion that cleared the way for the Communications Authority of Kenya (CA) to process payments linked to Nightigale Enterprises Limited, a company associated with 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 reviewed by us show that Mose's office considered questions surrounding Wambui's participation in CA board decisions and whether her association with Nightigale created a potential conflict of interest.
The legal opinion ultimately found no basis, from the documentation placed before the Solicitor General, to conclude that Wambui knew Nightigale would participate in the procurement process or that the company was intended to receive an award.
However, questions surrounding that conclusion have continued to grow.
Wambui Participated in Meeting That Approved Project Financing
One of the most significant details appears in 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 nevertheless drew a distinction between those approvals and the procurement that followed.
According to the reasoning, procurement was being undertaken by the ICT Authority, meaning Wambui could not reasonably have been expected to know in advance that Nightigale would participate in the tender or was destined to receive an award.
On that basis, the opinion found no documentary grounds to expect Wambui to declare a conflict of interest at that particular board meeting.
It further reasoned that declaring a conflict before Nightigale's participation was known could itself have suggested that Wambui possessed prior information about the procurement.
That reasoning is now at the heart of questions over whether the potential conflict was subjected to sufficient scrutiny.
Confidential Source Raises Fresh Questions
We have 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 additional questions about how the matter was handled.
We are withholding details that could identify the source and has not independently verified the contents of the alleged communications.
The allegations should therefore not be treated as established facts.
Nevertheless, when considered alongside the documented legal opinion, they reinforce questions about what information was available to officials, when that information became available and what steps were taken to investigate any potential conflict of interest.
Mose Opinion Cleared Path for Payments
Perhaps the most consequential part of the opinion is paragraph 65.
After considering the issues presented to 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 advice was subject to conditions.
The opinion stated that payment could proceed once the necessary supporting documentation, including certified invoices, had been received and the contracted works had been delivered in accordance with the contract.
The practical effect, however, was significant.
The legal obstacle to processing the payments was removed, provided the contractual requirements had been met.
That raises a central public-interest question: was the potential conflict involving Wambui and Nightigale investigated deeply enough before the legal advice allowing payments to proceed was issued?
Questions Mose Needs to Answer
The issue is no longer simply whether the procurement was conducted by the ICT Authority rather than the 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 that subsequently participated in the procurement created circumstances requiring enhanced scrutiny.
There is no evidence in the excerpts reviewed by us establishing that Mose personally benefited from the procurement or committed a criminal offence.
Likewise, the documents reviewed do not establish that Wambui improperly influenced the tender.
But the public is entitled to understand the evidential foundation behind a legal conclusion that had the effect of clearing the way for payments involving public funds.
What investigations were conducted to establish when Wambui first became aware of Nightigale's participation?
Was Nightigale's ownership and beneficial ownership thoroughly examined?
Were communications involving individuals connected to the procurement reviewed?
Was the relationship between the CA's financing decisions and the ICT Authority's procurement sufficiently investigated?
And crucially, did investigators establish whether anyone associated with Nightigale had access to information about the project before the procurement process began?
These questions cannot simply be dismissed by pointing to the fact that the ICT Authority conducted the procurement.
Public Money Demands a Higher Standard
The Nightigale controversy involves several public institutions and potentially significant amounts of taxpayers' money.
That makes transparency particularly important.
A legal opinion permitting payments does not, by itself, establish wrongdoing. Equally, securing legal clearance should not place the underlying decisions beyond legitimate public scrutiny.
Mose's opinion sets out the legal reasoning relied upon by his office.
What Kenyans now deserve is a clear account of the evidentiary trail behind that reasoning.
The Communications Authority, ICT Authority, Solicitor General's office and Wambui should therefore provide comprehensive responses addressing the procurement process, potential conflicts of interest, ownership interests and the circumstances that ultimately led to the decision to allow payments to proceed.
We will continue examining documentation surrounding the Nightigale contracts and has invited the individuals and institutions concerned to respond to the questions raised. Their responses will be published prominently.