Kenyans face Sh1m fine for secret WhatsApp, SMSs

Kenyans face a fine of Sh1 million for refusing to disclose SMSs, emails and WhatsApp messages that the government believes breach national security if Parliament adopts a proposed law.

The Bill seeks to amend the Official Secrets Act of 1968 to make it compulsory for anyone who owns a mobile phone or communication gadget to provide information on persons and data that the State is pursuing for national security breaches.

This will also include gadgets belonging to Kenyans that have been used in foreign countries to send information through channels like SMSs, emails and WhatsApp to the country.

Those who fail to provide the records or persons of interest to the security agencies risk a fine of Sh1 million or a jail term of up to one year, underlining the State’s latest push to fight crimes such as money laundering, terrorism and cybercrime.

"Any person who owns or controls any telecommunications apparatus used for the sending or receipt of any data to or from any place outside Kenya, to produce to the Cabinet Secretary or any person named in the order, the original or transcripts of all such data," says the Statute Law (Miscellaneous Amendments) Bill 2020.

"Any person who fails to comply with a request made under sub-section shall be guilty of an offence and liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year, or to both."

The Statute Law (Miscellaneous Amendments) Bill 2020 is an omnibus Bill that seeks to change various laws.

Besides introducing the Sh1 million fine, the Bill seeks to clarify terms used in the current law that was passed over 50 years ago to reflect the changes that match trends in the telecommunications industry.

For example, the proposed law introduces ‘telecommunications apparatus’ that will replace ‘telegrams apparatus’— a term that was used before the widespread use of text messages, WhatsApp and emails.

Intelligence operatives are increasingly using secret surveillance programmes to spy on emails and social media activity, and collect data on telephone calls.

Currently, those who fail to comply with orders to provide such information face a jail term not exceeding one year.

Crimes that are considered a threat to national security include smuggling of drugs and weapons like guns that are shipped in from neighbouring countries entangled in civil wars.

The push for stiffer penalties comes two years after the State lost a bid to instal surveillance gadgets on mobile phones that would be used to spy on calls and messages.

The Kenyan courts, however, declared the move illegal, saying that it would amount to intrusion into people’s privacy, a decision that dealt a blow to the State’s bid to curb what it argued was a spike in cybercrime.

CA push

The Communications Authority of Kenya (CA), the industry regulator, had wanted Safaricom, Airtel and Telkom Kenya to instal a Data Management System (DMS) arguing it would help in detecting fake mobile devices.

The CA raised suspicions with its letter dated January 31, 2017 stating that the purpose of DMS was to access information.

The three telecoms firms opposed the plan, saying it was a spyware whose purpose was to eavesdrop on people’s calls, read messages and also track their financial transactions.

Kenya is grappling with a rise in crimes committed through mobile phones and communication gadgets that have been blamed on weak laws.

Last year, the US flagged Kenya as a global hotspot for money laundering and a conduit of money used to fund terrorism due to insufficient legal controls.

Faced with the growing concerns from the international community, Kenya recently formed an anti-money laundering task force to establish the extent of flow of illicit money in the most susceptible sectors of the economy, setting the stage for a crackdown on the suspects.

The team brings together 30 State agencies from the security apparatus, the Judiciary, as well as banks, saccos, real estate and gaming regulators.