- Privacy International and Media Defense had applied to be enjoined as amicus curiae to give expert advice
- However, Supreme Court judges dismissed the application, saying the company had not demonstrated impartiality
Image: EUTYCAS MUCHIRI
The Supreme Court on Friday dismissed an application by a company to be enjoined in an appeal on whether CA(K) should eavesdrop on people's calls.
Privacy International and Media Defense had applied to be enjoined as amicus curiae to give expert advice.
However, Supreme Court judges dismissed the application, saying the company had not demonstrated impartiality.
Justices Philomena Mwilu (Deputy Chief Justice), Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung'u and Isaac Lenaola ruled that even though its expertise in the field of privacy is not in doubt, the company's impartiality is debatable.
“Our perception is that a position seeking to set out the detriment of the DMS system seeks to advance a position favouring the appellant and is inclined towards sustaining the High Court decision to the detriment of some of the respondents,” the court ruled.
In the case, the Law Society of Kenya moved to the Supreme Court to appeal a decision by the Court of Appeal that, according to it, technically allows the state to snoop on people.
The appellate court had ordered the CA to continue with stakeholder consultations over the proposed installation of the mobile management system known as the Device Management System.
The Communications Authority of Kenya has said the DMS was at the design stage when the matter was first taken to court and denies it was a guise to access people's calls and mobile provider databases.
The appellate judges said the High Court did not declare the DMS null and void but allowed its construction to go on within the boundaries of the law and ensuring the protection of freedom of privacy.
Privacy International wanted to help the court on compatibility of the DMS with international human rights standards.
The company said it had expertise in defending the right to privacy around the globe by conducting research and investigations into government and corporate surveillance activities.
It also said it was non-partisan in the matter and only seeks to aid the court in arriving at a just determination by providing relevant comparative framework on the issue.
The company argued it would have been in the public interest and prudent to admit it as an amicus.
But, the CA(K) and the Attorney General opposed its admission, arguing that the company had not demonstrated any expertise in the matters to be addressed.
They said Privacy International had not raised any novel point of law and had demonstrated partiality by taking a partisan stance.
The court agreed with the CA(K) and AG that it does not satisfy the threshold for admission as amicus curiae.
The judges ruled that an amicus brief should be limited to legal arguments and the relationship between amicus curiae, the principal parties and the arguments in the appeal.
“The court may, therefore, and on a case-by-case basis, reject amicus briefs that do not comply with this principle,” it ruled.
Edited by Josephine M. Mayuya