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Devil is in the detail on phones privacy ruling

By Nelson Havi | Apr 28th 2020 | 4 min read
By Nelson Havi | April 28th 2020
Lawyer Nelson Havi at a Milimani court. [George Njunge/Standard]

The Sunday Standard recently ran an article titled “State gets greenlight to tap private phone calls.” The reported Court of Appeal decision overturning a High Court judgement on phone privacy outraged the public. The Judiciary wrote to The Standard, requesting correction and apology. An explanation of the decision was given. 

The Judiciary’s action is unprecedented. Courts do not demand corrections and apologies from the Press for false publications. Is the publication false? Should The Standard publish a correction and apology? 

The tussle between the public, mobile phone service providers on one hand and the Communications Authority of Kenya (CCK) on the other hand commenced at the High Court. The CCK’s decision to demand access to phone data to curb proliferation of illicit and illegal devices was challenged for several reasons. It was feared the Device Management System (DMS) had capacity to eavesdrop on private communications. 

Among issues determined by High Court was “whether the DMS system threatens the right to privacy of the subscribers of the first, second and third interested parties. If yes, does the limitation meet the Article 24 analysis test”.

It was argued that the DMS could spy or snoop, collect and store subscribers’ personal data, which would enable the government to access, collect and retain communication data belonging to subscribers, hence a gross violation of the right to privacy.

This fear was confirmed by mobile phone service providers who supported the petition. They raised concern on the privacy, confidentiality and consumer concerns arising from the fact that subscribers’ personal information shall be in the custody of a third party.

On April 19, 2018, the High Court found that the DMS infringed on the right to privacy. The evidence was contained in two letters dated January 3, and 6, 2017 from CCK. The letters demanded access to subscribers’ phone data.

Last April 24, the Court of Appeal reversed the High Court decision in its entirety. The court held as follows: “The Judge did not identify the actual probable evidence that led to the conclusion that DMS would intrude on privacy and even if there were issues of concerns they were still being addressed.”

The Court further held thus: “Even if it was for installation, there was no evidence to demonstrate that the system was meant to spy on consumers’ private information other than to net out the illegal operators.”

In its final order, the court gave CCK the go ahead to develop the DMS in consultation with stakeholders “so as to complete the technical and consumer guidelines on the DMS.”  Guidelines or regulations for the operationalisation of the DMS are to be subjected to public participation.

As they say “the devil is in the detail.” You will not find the green-light to tap phone calls in the final orders of the court. It is in the body of the judgement which rubbished the High Court’s findings on the issue. The High Court ruled that the DMS had the capacity for eavesdropping and stopped its implementation. The Court of Appeal has said that there was no evidence of such misuse. 

The directive from the Judiciary to The Standard must be contextualised. Courts have in the recent past dismissed genuine complaints of violation of rights and freedoms for want of evidence where such evidence has been concealed or can only be in the possession of the violator.

Are we back to the era where judges were executive minded out of fear or duty? What else would explain the demand to a newspaper for correction and apology? What if the correction and apology are not forthcoming, will Judiciary sue? In the Due Process of Law, Lord Denning wrote: “…from the nature of our office, we cannot reply to their criticism. We cannot enter into public controversy.”

Parliament is emasculated now that there is essentially no opposition. This explains the many bad laws that end up in statute books. The Judiciary could be weakened in what may be perceived fear of retaliation on individual judges should they rule in a particular way.

Today, the Court of Appeal is reported to have ruled that Kenya Revenue Authority has power to search any premises and seize documents. If that is so, will Judiciary direct the Press on what to report on implication of such a decision?

I foresee more decisions from courts curtailing fundamental freedoms and rights as was the time before the promulgation of the 2010 Constitution. Lawyers and the Press were in the forefront of the fight that birthed the Constitution. They should continue being vigilant in examining court decisions to enlighten the public of their implications. Let all that is hidden come to light through a free Press because publicity is the hallmark of fidelity.


-Mr Havi is the President of the Law Society of Kenya. Email: [email protected]

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