The High Court yesterday stopped plans by the government to snoop on private conversations by installing a system to access data from phones.
It called them unconstitutional.
It was yet another landmark ruling with far-reaching implications, coming only a fortnight after the court threw out most of the controversial amendments hastily made to the Elections Law by Jubilee MPs before the October 26 presidential rerun.
Yesterday, Justice John Mativo said installing surveillance systems to enable the Communication Authority secretly access calls, text messages and even mobile money transactions was not only illegal but also a gross violation of statutory consumer rights.
The regulator had begun to instal Device Management Systems (DMS) stored by the three leading mobile providers — Safaricom, Airtel and Orange-Telkom — but the judge said way the policy was implemented was inconsistent with the Constitution.
“A declaration is hereby issued that the first respondent’s (CA’s) plans to set up connectivity links between DMS and the mobile phone networks is unconstitutional, null and void, to the extent that it was arrived at unilaterally,” the judge said.
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The CA caused an uproar last year after it emerged that the system it quietly installed in January had the ability to listen, read and track down anyone who owns a mobile device from any part of the country.
The government through the CA had ordered the three mobile companies to allow Broadband Communications Network to tap their computers and plant spying gadgets on all telephony networks.
This was to enable them to monitor all information transacted on mobile phones and give details — including time, dates of the communication, duration and the exact location where a call is made.
Yesterday, Justice Mativo said the agency ought to have crafted and implemented a meaningful public participation programme before installing the spy gadgets.
Activist Okiya Omtatah had challenged the action in court, arguing that there was inadequate public participation before the adoption and implementation of the system.
He said it was executed secretly.
Omtatah contented that the action exposed consumers to intrusion on their privacy through IMEI, IMSI, MSISDN and CDRs assigned to each device without the DMS.
It evoked memories of 2012 when the government switched off counterfeit phones without using the system.
CA director general Francis Wangusi told the court the agency has the mandate to monitor compliance with the Kenya Information and Communications Act (KICA). He said DMS was not a new policy but only meant to control proliferation of illegal devices.
Wangusi denied allegations of snooping, saying the case by Omtatah was hypothetical and based on misinformation.
Broadband Communications Network argued that the gadgets had already been delivered to CAK and suppliers were demanding payment.
The company said CA was at risk of losing US$1,878,233 while they were incurring a monthly loss of US$10,044 since March 2017 when the High Court issued interim orders, halting the implementation.
Justice Mativo said the public must participate in decisions affecting it.
He observed that millions of subscribers and the general public whose records are held by mobile networks were not involved at all.
He noted that the CA had admitted that consultations were still ongoing, which was confirmation that what had been done so far, in terms of stakeholder participation, was insufficient.
“This leads to the conclusion that the installation of the DMS system on the purported implementation was done before undertaking any meaningful stakeholder engagement,” he said.
The court said the decision contained in a letter dated January 31, 2017, seeking to integrate the DMS to the mobile firms is a threat to subscribers’ privacy, hence, a breach of their constitutionally guaranteed rights.
The judge faulted the argument by the agency that it has the mandate of approving and accepting communication equipment meant for use in the country to fight counterfeits.
“For the CAK to purport to perform (a function) clearly vested by the law in other statutory bodies which actions are not expressly provided under its enabling status is ultra vires” he said.
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SETBACK
The ruling is the second blow in a month to the Jubilee administration’s penchant for enacting controversial laws.
On April 7, the High Court invalidated radical changes to the electoral laws that were pushed through by Jubilee legislators in October last year, days to the repeat presidential polls.
The amendments were seen as part of the ruling party’s strategy to tame the Supreme Court and make it almost impossible to nullify a presidential poll.
They also aimed to fundamentally change the way the IEBC conducts its business.
Among the provisions that were nullified by Justice Chacha Mwita is the requirement that a petitioner must prove that violations to the Constitution or any electoral law significantly altered the election results as declared by the IEBC.
Also quashed by the Court was the reduction of the IEBC quorum from five to three as well as a provision allowing Commissioners to elect a new chair in the absence of the IEBC boss.
Justice Mwita ruled that the Constitution is supreme and any interference with it will not to be tolerated.
“They [amendments] have the effect of weakening rather than strengthening our electoral process; any amendments meant to circumvent the constitutional principles are unconstitutional,” Mwita ruled.
In February, Mwita had also quashed amendments to the Public Audit Act passed in 2015. The amendments barred the Auditor General from probing military, National Intelligence Service and police books of accounts.
The amendments had also sought to form an audit advisory board to oversee the Auditor General, create a new position — acting Auditor General — which was widely seen as a safeguard for the planned removal of current office holder Edward Ouko.
Non-profit organisation Transparency International had argued that the amendments were aimed at taming the Auditor General who has over the years put the government’s three arms on the spot over their use of public funds.
In June last year, Justice George Odunga quashed amendments to the Kenya Information and Communications Act which clipped the Communications Authority’s power to monitor dominance in the sector.
The amendments had been passed by Parliament and signed into law by President Uhuru Kenyatta in December 2015. In the suit, activist Okiya Omtatah argued that the amendments undermined the CA’s authority by limiting its power to act on anti-competition and dominance actions in the industry.