The Judiciary Responds On Controversial Orders Allowing State To Tap Private Phone Calls

The Judiciary has distanced itself from a report published by the Standard that a ruling of the Court of Appeal had given the government the go-ahead to tap and listen to private calls.

The Chief Justice Maraga led Judiciary refuted claims in a statement released yesterday, on Sunday, April 26.

”The Standard got it wrong. Communication Authority (CA) engaged mobile network providers proposing to install a system to detect stolen phones and counterfeits. The court held that the stakeholder engagement should be completed and the rules subjected to public participation,” the statement reads in part. 

Mombasa County leadership, led by Governor Hassan Joho (left) during the laying of the foundation stone for the construction of the Mombasa High Court building in January 31, 2018.
CJ Maraga and Mombasa County leadership, led by Governor Hassan Joho (left) during the laying of the foundation stone for the construction of the Mombasa High Court building in January 31, 2018. FACEBOOK

The law society of Kenya President Nelson Havi termed the ruling as retrogressive. 

”The ruling is retrogressive as it only comes a few years after the High Court quashed the security laws that were intended to the government oversight powers over the privacy of Kenyan citizens in the investigations and prosecutions of cases against terrorism,” stated Havi.

The Standard had reported that the national government would be able to access phone records and listen to conversations whenever needed without having to obtain a court order. 

However, the Judiciary stated that the ruling was in regard to the Communications Authority’s proposal to install a system to detect stolen and counterfeit phones.

”I suggest judiciary to start having press summaries for public interest judgments and rulings,” said Duncan Ondimu citing the apparent misinterpretation of the judgment by the media house.

Court allows government to install surveillance system to tap private phone calls
The Court of Appeal ruled in favour of the government to allow for the installation of the DMS but with consultation with the service

This came after the court of appeal judges Martha Koome, William Ouko, and Daniel Musiga in a ruling allowed the Communications Authority Kenya to install a mass surveillance system.

The three-judge bench overturned Justice John Mativo’s High Court ruling that outlawed the controversial data law that was meant to keep watch over mobile phone networks.

The Communications Authority of Kenya (CAK) was to install the controversial Data Management System (DMS) meant to monitor and tap into phone networks.

Justice Mativo had thrown out the case on grounds that the government could be targeting consumers’ private information, but the authority insisted DMS was only meant to detect fake mobile devices.

Justice Mativo issued orders barring implementation of the system before the authority moved to the Court of Appeal.  

While quashing Justice Mativo’s ruling, the three-judge bench faulted the lower court noting that it failed to observe that there was no credible evidence to demonstrate the system could not be used to spy and monitor Kenyans.

“The right to privacy is important but the issues of abuse by unscrupulous mobile operators also need to be tackled so as to strike balance between securing the right to privacy and dealing with the problem without infringing on the right to privacy,” read the court ruling that was read by Justice Koome. 

Law Society of Kenya President Nelson Havi during a past court session.
Courtesy Image of Law Society of Kenya President Nelson Havi during a past court session.

LSK President Nelson Havi termed the ruling as intended to be used to limit the freedom of Kenyans.

”But as it comes to occur there was no terrorism that the government was investigating to require such draconian laws, but if you look at the ruling it’s just in line with what the government wanted, and what the Court of Appeal has is to undo many years of progressive gains towards balancing the rights of a private individual against the public interest,” stated Havi.

Havi stated that LSK could appeal the ruling at the Supreme Court after consultations with its members.

”The court didn’t use logic in the ruling and it”s a ridiculous one. We shall consult our members and if they are of the view that we take legal action then we shall move at the Supreme Court to challenge it,” he added.

LSK President also blasted legislators who he said forgot their representation obligations. He called out Homa Bay Town MP Opondo Kaluma who publicly supported the ruling on his Twitter account while drawing comparisons with the United States of America.

”There are these MPs who have a legal foundation as advocates but when they get into Parliament they forget they are advocates. There are many times when these Members of Parliament come to courts to challenge certain laws and the judge asks them where they were when the laws were being made.

”We are in an environment where legislators are in bed with the Executive and the courts are weakened and they just rubberstamp the actions of the Legislature and the Executive, so who will speak and stand for Kenyans?” Havi wondered. 

Court allows government to install surveillance system to tap private phone calls
Former CA director-general Francis Wangusi had made the request to the telecommunication companies. Photo: K24

In January 2017, the former CA director-general Francis Wangusi wrote to the telecom operators to allow them to install the DMS, but the companies rejected the request on grounds that it was spyware to infringe on the privacy of customers.

Human rights activist, Okiya Omtatah, and other interested groups moved to court arguing it was inappropriate for the government to go for the fake devices when they are at the hands of citizens and instead they should be tapped at the point of entry. 

During the Appellate Court hearing, Safaricom said it was inappropriate to allow installation of the system arbitrarily without consultation because it amounted to the intrusion of privacy as the telecom operators are not supposed to disclose data to third parties.

Telkom Kenya on its side told the court it was comfortable with either outcome of the case. Airtel which was also mentioned as a party in the matter did not file its reply.

While issuing their ruling, the judges were informed that consultations with the telecommunications were still underway and the set substituted the High Court orders requiring the appellant to continue with the consultations.

“In exercise of its mandate of developing a DMS system, the appellant shall continue with the consultations that were ongoing with the stakeholders and MNOs prior to the filing of the petition so as to complete the technical and consumer guidelines on the DMS,” said the three-bench judge.

The judges also directed the guidelines or regulations for implementing the system be subjected to public participation. 

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