Court halts CA plans to start tapping SMS, mobile phone calls

The court has temporarily stopped government’s plan to start tapping private phone conversation and messages from today.

High Court judge John Mativo yesterday granted the orders in an application filled by activist Okiya Omtatah who claims that the directive issued by the Communications Authority of Kenya (CA) would infringe on privacy and is a violation of the Constitution.

Justice Mativo directed that the temporary orders stopping the implementation of the directive would remain in force until the case is concluded. He also certified the application as urgent and directed that it be heard on March 6.

The CA has already awarded Broadband Communications Networks Ltd the tender to deliver, install, test, commission and maintain a device through which the project will be implemented.

In his application, Mr Omtatah argues: “CA’s arbitrary decision to spy on Kenyans through Broadband Communications Networks violates both the law and Constitution.”

He added that the right to privacy is entrenched in the Constitution and cannot be limited in the manner suggested by CA.

CA director-general Francis Wangusi last week said entry of illegal devices into Kenya demanded the speedy implementation of the system. The regulator says it wants to install equipment in the networks of the three mobile operators to improve monitoring of counterfeit mobiles in line with its consumer protection mandate.

Safaricom expressed concerns the monitoring devices would give the regulator access to other customer data including calls, messages and financial transactions.

The regulator has switched off counterfeit mobiles in the past, but it says consumers are still exposed to such devices, hence the need for a better monitoring system.

However, legal experts have criticised the CA saying that there are other options at its disposal to track counterfeit phones without violating the law.

Former Law Society of Kenya chief executive Apollo Mboya said CA has not demonstrated that it has exploited other possible means to achieve its intended goal of controlling counterfeit phones.

He said the Kenya Bureau of Standards could stem flow of counterfeit goods as well as effecting strict adherence to the importation laws.

“The government can tighten security at the borders where these illegal imports are coming through, and also ensure enactment of the data protection laws,” said Mr Mboya.

He said Article 31 of the Constitution guarantees right to privacy of any person, including the right not to have their communications infringed upon, adding that whatever CA seeks to undertake is unconstitutional.

“Any data that has been harvested is to date not protected by any law, but the public have a right to privacy which must not be infringed,” he said.

Suyianka Lempaa, a lawyer, said even where it could be argued that Article 24 of the Constitution has limited freedom of privacy, the CA directive goes beyond Article 24 in that the requirement is not justifiable in an open and democratic society.