Communications Authority of Kenya (CA) has asked the Supreme Court to throw out a case by the Law Society of Kenya (LSK), challenging a decision to allow telcos to install a data management system.
CA argued that LSK had no powers to participate or file an appeal as it never participated in the High Court and Court of Appeal.
LSK joined Busia Senator Okiya Omtatah, Article 19, in claiming that the regulator’s decision, requiring Safaricom, Airtel and Telekom Kenya to install Data Management System and link it to CA was meant to spy on mobile conversations. “I would like to bring some issues to the court’s attention that will require some ruling in limine ( as a preliminary issue). The Law Society of Kenya has never been a party in the High Court and Court of Appeal,” argued CA’s lawyer Githu Muigai.
Prof Githu said the matter heard before the High Court and the Court of Appeal was on whether there was public participation and not a privacy issue.
He said LSK’s case was opening a fresh dispute that was not before the lower courts.
“A person who can approach the Supreme Court in the manner the Law Society has sought must be a person who has locus. The case is not an appeal, it is a fresh petition. The issue determined was a procedural issue. This is a collateral attack on a decision the Court of Appeal declined to make. It is our humble submissions that LSK needed certification and it was not a party in the proceedings,” he argued.
LSK’s lawyer Dudley Ochiel said his client is acting in the public interest. According to him, the question of whether CA intended to snoop on mobile conversations is paramount for the country.
At the same time, he argued that LSK is aggrieved about the Court of Appeal ordering CA to conduct public participation before rolling out the system.
“The right to privacy is paramount and this is the first case of its kind. The law states that any person and not a person in the litigation. This is a matter that can aggrieve any person,” said Ochiel.