The High Court in Nairobi has dealt government a huge blow as it stopped plans by Communication Authority of Kenya (CA) to snoop on private conversations.
CA had planned to install a system to access data from phones. However, Judge John Mativo on Thursday ruled this was unconstitutional.
He said CA’s move to install surveillance systems to enable CA secretly access calls, text messages and mobile transactions violated statutory consumer rights and is illegal.
His judgment comes just as CA was moving on with plans to install Device Management Systems (DMS) stored by the three leading mobile providers — Safaricom, Airtel and Orange-Telkom.
Government through the regulator had installed the gadget secretly in January last year with an aim of monitoring 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.
“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,” said the judge according to the Star.
Mativo said that CA should have first rolled out an intense public participation programme to get Kenyans input on the plan.
The judge said government’s move denied its people the voice to decide if or not they consent with the plan to tap into their phones and access their data.
He also said that by CA’s admission that consultations were ongoing, it was evident that the level of public 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,” added judge Mativo.
CA Director General Francis Wangusi argued that the agency has the mandate to monitor compliance with the Kenya Information and Communications Act (KICA).
Also, said Wangusi, DMS only meant to control proliferation of illegal devices.
But the judge noted: “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.”