Supreme Court Delivers Ruling on Govt's Tech to Track Mobile Phones

Supreme Court Judges
From Left to Right: Hon. Justice Isaac Lenaola, Justice Dr. Smokin Wanjala, Hon. Deputy Chief Justice Philomena Mbete Mwilu, Hon. Chief Justice Martha Koome, Justice Mohammed K. Ibrahim, Hon Lady Justice Njoki Ndung’u, Hon. Justice William Ouko at Supreme Court Building on September 6, 2022.

The Law Society of Kenya (LSK) on Friday, April 21, lost a landmark case against the government over the development of a Device Management System (DMS) that will affect mobile phone subscribers.

LSK had moved to the Supreme Court to appeal a decision by the Appellate Court to allow the Communications Authority of Kenya (CA) to continue developing a Device Management System (DMS) on condition that the guidelines or regulations on its installation be subjected to public participation.

The appellants argued that DMS will allow the Communication Authority of Kenya to manage and monitor mobile phone users' devices such as smartphones, tablets, and laptops.

In a judgment dated April 24, 2020, the Court of Appeal allowed CA to install DMS, including the system's intent, utility, procurement and usage. 

Law Society of Kenya President Eric Theuri at his office on November 25, 2021.
Law Society of Kenya President Eric Theuri at his office on November 25, 2021.
Eric Theuri

"After hearing the submissions by the parties on whether this Court has jurisdiction to hear and determine this appeal, and whether the party adjudicating this matter is properly before the Court, and upon considering the relevant laws; the Court found that the definition of ‘a person seeking to file an appeal’ provided for in Article 163 (3)(a) and (b) of the Constitution only extends to a party who is aggrieved by a decision issued against them by the Court of Appeal and who then, prefers an appeal before the Supreme Court," Supreme Court ruling read in parts.

Busia Senator, Okiya Omutatah, who also filed a cross-appeal, had challenged the Court of Appeal’s decision on the grounds that the system could access information on the IMEI, IMSI, MSISDN and CDRs of subscribers.

According to Omutatah, establishing DMS will threaten the right to Privacy and allow the government to eavesdrop on its citizens' private conversations, spy on calls and texts and examine all mobile money transactions.

According to Omutatah, Mobile Device Management (MDM) or Enterprise Mobility Management (EMM) provides a centralised interface for managing the entire lifecycle of devices, from initial deployment to decommissioning.

He argued that it allows administrators to configure device settings, deploy applications, and enforce security policies across multiple devices from a single console.

It was alleged that some of the key features of DMS included device enrollment, device inventory management, remote device configuration and monitoring, application management, data backup and recovery, and security management. 

However, in its ruling, the Supreme Court challenged the appellants, the Law Society of Kenya and Omutatah, to deal with pending technical issues within the context of the law.

"The preliminary matter must be addressed before going into the merits or otherwise of the appeal itself, as it dealt with the issue of jurisdiction, and to the question as to whether the appellant had any capacity to file the appeal before this Court," Supreme Court Judgement read in part.

While dismissing the appeals, the Supreme Court noted that the legal definition of the matter did not open the door for any disgruntled 'passerby' to approach the Court with a decision delivered by the appellate court.

"The Appeal is hereby dismissed for want of locus of the Appellant. The cross-appeal is also hereby dismissed and the Appellant shall bear the costs of this appeal," Supreme Court ruled.

In 2018, the Communication Authority of Kenya clarified that the Device Management System was meant to help apprehend criminals, and had nothing to do with spying activities. 

"We are protecting you. The DMS facilitates the denial of services that are counterfeits and stolen phones. It blacklists stolen phones from entering the country," former CA Director-General Francis Wangusi stated.

Busia Senator Okiya Omtatah at the Supreme Court
Busia Senator Okiya Omtatah at the Supreme Court on Tuesday, September 5, 2022.
Okiya Omtatah
  • . .