The battle on whether or not the State should forge ahead with plans to develop a mobile management system, largely viewed as spyware to monitor private conversations, is now heading to Kenya’s top court.
The Court of Appeal earlier ruled that the system is at its architectural stage so plans for its development should await stakeholder consultation and public participation.
In its ruling, the court noted that consumers’ freedom of privacy must be respected.
Following the ruling, activist Okiya Omtatah filed a notice of appeal at the Supreme Court on Tuesday, saying he was dissatisfied with the lower court's entire judgment.
“I, being dissatisfied with the entire judgment of the Court of Appeal given on April 24, intends to appeal against the decision in its entirety,” he said in the notice.
The High Court ruled that the disputed mobile management system known as DMS is unlawful and threatens freedom of privacy and that there has been no public participation on its use.
But according to Court of Appeal judges Martha Koome, Daniel Musinga and William Ouko, the DMS is at its architectural stage so it was wrong for High Court Judge John Mativo to rubbish it.
“In our view, the order was not to declare the whole DMS project null and void. It was to allow the construction to continue while abiding by the law and ensuring protection of the freedom of privacy,” they stated in their ruling.
"In exercise of its mandate of developing a DMS system, the Communications Authority of Kenya (CAK) shall continue with consultations that were ongoing with the stakeholders and mobile network operators, prior to the filing of the case, so as to complete the technical as well as consumer guidelines on it. The guidelines or regulations should be subjected to public participation.”
While the CAK argued that the matter spilled over to the corridors of justice prematurely and that the target was counterfeit devices, the activist claims the DMS will allow public control and eavesdropping through interception and recording of communication and mobile data.
Since the theft of mobile devices and the rise of counterfeits became a concern for regulators, the East Africa Communication Organisation agreed that mobile service operators implement an Equipment Identification Register (EIR), which led to the switching off of fake phones in September 2012.
But because the problem persisted due to ease of communication over the internet, so the CAK, as the regulator in Kenya, engaged stakeholders and the mobile network operators in creating a DMS system to identify counterfeit devices.
Before the discussions were completed with partners such as the Kenya Bureau of Standards, the matter went to court in 2016, with the activist challenging the proposed installation of the DMS.
Mr Omtatah said it has the capacity to result in spying on Kenyans, hence the need to stop it and declare it unlawful.
However, the CAK has been arguing that there is no such automatic access to call data records so there will be no eavesdropping.
While giving the State the green light to continue with the project plans, the Court of Appeal judges ruled that there is a technical issue in justifying the DMS equipment before stakeholders agree on guidelines.
They said it was not clear whether public participation took place and noted that the matter on counterfeit devices remained unresolved.