Summary of the supreme court of kenya judgement in petition no.8 of 2020:the law society of kenya vs the communication authority of kenya & 10 others.
FACTS
The theft and proliferation of counterfeit mobile devices have been a huge challenge in the Kenyan market. In 2011, the East Africa Communications Organization developed a strategy that recommended the implementation of an Equipment Identification Register (EIR) to combat this problem. The Communications Authority of Kenya (CAK) implemented the first phase of this strategy, which successfully led to the switch-off of illegal mobile handsets. However, as counterfeit phone vendors became more sophisticated and found ways to skirt the new system, the CAK rolled out steps towards the implementation of a Device Management System (DMS). This centralized EIR would have access to the International Mobile Equipment Identification (IMEI) database by mobile network operators.
In trying to implement the DMS system, the CAK engaged with mobile network operators, asking them to provide it with access to information on the International Mobile Equipment Identification (IMEI), International Mobile Subscriber Identity (IMSI), Mobile Station Integrated Services Digital Network (MSISDN), and Call Detail Records (CDRs) of their customers. The purpose of the request was for CAK’s technical team to conduct a survey and installation of the Device Management System. This action raised concerns of eavesdropping on customers and infringement of privacy from various stakeholders, leading to the filing of a constitutional petition before the High Court challenging the implementation of the DMS system.
PROCEEDINGS BEFORE THE HIGH COURT
The Petitioners filed a suit alleging violations of the right to privacy under Article 31, consumer protection rights under Article 46, and the right to fair administrative action under Article 47. The petition also pointed out the lack of public participation and pointed out that the CAK did not conduct a regulatory impact assessment and violated Section 5A (2) of the Kenya Information Communication Act (KICA).
The CAK rebutted, stating that the Petition was premature and hypothetical and that under the Kenya Information and Communications Act, it is mandated to monitor compliance. CAK stated that the DMS was not a new policy but a continuation of a 2011 policy to stop the proliferation of counterfeit or illegal devices into the country.
The primary issues for determination were as follows:
- Whether the implementation of the DMS by the CAK violated the right to privacy of the Mobile Network Operators and their subscribers, as well as their consumer protection rights.
- Whether subscribers/consumers were adequately involved in the decision-making process regarding the DMS implementation and did it meet the standards of public participation.
In its determination, the High Court ruled in favor of the Petitioners and declared the DMS implementation invalid. The court stated that such action violated the constitution and Section 5A (2) of KICA regarding proper public participation. It, therefore, failed to comply with its legal requirements. The court also asserted that DMS infringed upon the right to privacy and consumer rights, further supporting its decision to declare the implementation invalid. Finally, the High Court found that subscribers were not adequately involved in the decision-making process regarding the DMS implementation, further supporting its decision to declare it invalid.
Consequently, the Court issued an order of prohibition to the CAK, prohibiting it from implementing the DMS system to establish or access information on the IMEI, IMSI, MSISDN, and CDRs from the subscribers of mobile networks.
PROCEEDINGS BEFORE THE COURT OF APPEAL
Aggrieved by the decision of the High Court, the CAK filed an appeal before the Court of Appeal, which framed 2 key issues for determination as follows:
- Whether the proposed installation of the device called Mobile Management System (DMS) by the Communications Authority of Kenya (CAK) would herald an era of public control and eavesdropping of people’s privacy by intercepting and recording communication and mobile data.
- Whether the appellant adequately engaged stakeholders or allowed public participation in the design and implementation of DMS, whether the dispute was taken to court prematurely, therefore a hypothetical question, and whether the Judge misapprehended the mandate of the appellant.
The Court of Appeal set aside the decision of the High Court, stating that the court misapprehended the issues before it when it found that the freedom of the right to privacy of consumers was threatened and that there was no public participation. The Court of Appeal stated that since the DMS was still in its architectural or configuration design stage and consultations with stakeholders were ongoing, it was still too early to state that it had violated the Constitutional provisions. It was, therefore, not proper to declare the whole DMS project null and void. The court insisted that instead, they should have allowed the construction of the DMS to continue while abiding by the law and ensuring the protection of freedom of privacy.
PROCEEDINGS BEFORE THE SUPREME COURT
Aggrieved by the decision of the Court of Appeal, The Law Society of Kenya, who were not previously parties to the suit, filed an appeal before the Supreme Court, challenging the decision. The appellant contended that the Court of Appeal erred in applying an incorrect standard of review, drawing inconsistent inferences, and misunderstanding certain legal principles. The Appellant sought orders setting aside the Court of Appeal decision and reinstating the High Court judgments or, in the alternative, a declaration that the CAK’s decision to procure and install the DMS is unconstitutional.
The key issues before the Supreme Court were as follows:
- Whether the Court of Appeal applied the correct standard of review in overturning the High Court’s decision.
- Whether the Court of Appeal drew inconsistent inferences and misapprehended certain legal principles.
- Whether the Law Society of Kenya properly invoked the jurisdiction of the Supreme Court in filing the appeal.
- Whether the grounds of appeal involved constitutional interpretation or application. Whether the cross-appeal by Okiya Omtatah properly invoked the jurisdiction of the Supreme Court.
Before addressing any of these issues, the CAK raised a preliminary objection on the matter of jurisdiction. The CAK pleaded that since the LSK was not a party to the suit ab initio, it did not have locus standi to litigate on this appeal to the Supreme Court. The appellant, on the other hand, relied on Rule 36 of the Supreme Court Rules, which provides wide locus for any party to institute an appeal before the Supreme Court. Rule 36 stipulates that “A person who intends to make an appeal to the Court shall file a Notice of Appeal within fourteen (14) days from the date of judgment or ruling is which is the subject of appeal.”
The court agreed with the CAK, insisting that the definition of ‘a person’ seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal. The court stated that the definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach it. The Supreme Court asserted that a party who did not litigate those issues before the Superior Courts cannot file the appeal, even in matters relating to public interest. The Appeal was, therefore, dismissed.
CONCLUSION
Given the far-reaching ramifications associated with the DMS implementation, it is regrettable that the Supreme Court, in retaining its jurisdiction, failed to furnish a definitive answer to the substantive issues in this case. The court’s inability to deliver a definitive judgment that could provide clarity and guidance for all stakeholders involved leaves unresolved questions and concerns regarding the right to privacy and the protection of constitutional rights in the context of technological advancements and regulatory measures in Kenya.
DATE: May 23, 2023 BY: ANNE GATHIRWA
For more insights pertaining to this matter, you can reach the writer at annegathirwalaw@gmail.com. You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke