BY SAM ALFAN.
The Court of Appeal has paved the way for the government to snoop on your phone conversations.
While setting aside a decision barring Communication Authority of Kenya (CAK) from planting spy gadgets on all networks, the Appellate Court allowed the agency to proceed with its plans.
Justice William Ouko , Martha Koome and Daniel Musinga set aside the entire judgement by Justice John Mativo delivered on April 19,2018.
The High Court Judge had stopped the proposed installation of the device called mobile management system (DMS) by CA.
“We find the appeal has merit. We therefore set aside the orders of April 19, 2018 and substitute thereor order that, in exercise of its mandate of developing a DMS system, the appellant shall continue with the consultations that were ongoing with the stakeholders and MNOs prior to the filing of the petition so as to complete the technical and customer guidelines on the DMS”, ordered appellate judges.
The court appeal further directed that the guidelines or regulations should be subjected to public participation.
The three judge bench noted that the DMS was still in its architectural or configuration design stage and consultation with stakeholders Safaricom PLc, Airtel Kenya, Telkom Kenya among others were ongoing.
The judges observed that the orders that commended themselves to the situation was not to declare the whole DMS project null and void but rather to allow the construction of DMS to continue while abiding by the law and ensuring protection of freedom of privacy.
Communication Authority of Kenya (CAK) challenged high court decision barring installation of the controversial communication monitoring Device Management System (DMS) suspended.
The government said that it has paid over 40 million shillings for the design supply and commissioning of the DMS system which amount cannot be recovered.
This was revealed in documents filed by Communication Authority of Kenya (CAK) before court of appeal seeking to have the high decision that quashed the DMS tender.
Through lawyer Wambua Kilonzo, CAK argued that if termination of the tender on plans to spy phones is not set aside, the communication Authority is in danger of losing an amount of over 40.3 million shillings being the payments already made to the Broadband Communications Networks Limited.
The commission further said that CAK may be liable up to a total amount of 209 million shillings being the contract price which amounts cannot be recovered even at the point of success of the appeal.
CA said that Justice Mativo erred in law and fact by failing to hold that the petition before him was hypothetical.
They claimed the court erred in law by holding that the installation of the device management (DMS) system threatens to or violates the right to privacy of subscribers.
CA argued that the learned judge erred in fact by failing to appreciate that there was an ongoing consultation process in regards to the DMS between the regulator and the interested parties and further the process had not been concluded.
In April this year High Court stopped Communication Authority of Kenya (CAK) from implementing decision of planting spy plant gadgets on all networks.
Justice Mativo also ruled decision by CAK to implement the DMS system Was adopted inconsistent with the provisions of the constitution adding that there was no public participation hence null and void. Court ruled that CAK Was obligated to craft and implement a meaningful program of public participation and stakeholders engagement in the process leading to the implementation of the system.
Justice Mativo said the plan by the Communication Authority, to install spy gadgets, was adopted in a manner inconsistent with the Constitution.
On January 31 and February 6, CA wrote to mobile phone service providers Safaricom Ltd, Airtel Networks Ltd and Orange-Telkom Kenya to allow the tapping of their computers by planting spy plant gadgets on all networks
