BY SAM ALFAN.
Communication Authority of Kenya has urged the Court of Appeal to set aside a decision barring the regulator from installing the controversial communication monitoring Device Management System (DMS), which was blocked by the High Court.
Through Wambua Kilonzo, CA wants the court to set aside the judgement delivered by Justice John Mativo on April 19 and the petition at the High court be dismissed.
CA says the judge erred in law and fact by failing to hold that the petition before him was hypothetical.
The regulator further says 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.
According to CA, the High Court erred in law by taking into consideration matters not pleaded in the petition, framing issues for determination on the same and determining them to the detriment of the appellant.
In particular, Judge Mativo framed the issue of whether the “decision” to implement DMS was subjected to the Statutory Instruments Act, he analyzed the issue and made a finding that it ought to have been subjected to the Act and thereby found fault for its not having been so subjected even without inviting the Appellant to submit on the issue.
The CA says in his consideration of the Right to Privacy, the Judge erred by disregarding the contents of its replying affidavit and further affidavit as concerns the function of DMS proposed parameters of use of DMS.
Kilonzo says the contents remain uncontroverted by any party.
It is argument that the Judge misstated facts as concerns the contents of the letters the subject matter of the Petition.
He pointed out that in particular, the letters were not “decisions” capable of being challenged but were mere alarmist statement as nothing was produced in evidence in support of the Petition to inform any of the conclusions reached by the learned judge on alleged spy capabilities of the DMS.
“While the submissions by Safaricom Plc may have been more attractive, the petition placed before the High Court was that of Okiyah Omtatah who was bound by his own pleadings.
Lawyer Kilonzo adds that Judge Mativo took into considerations the submissions of Omtatah that the capabilities of the DMS duplicate the functions of the Anti-Counterfeit Agency and the Kenya Bureau of Standards. An allegation not contained in his petition and therefore not an issue in Omtatah’s petition.
He said the judge of the High Court in his finding ignored the provisions of the law that specifically grant the CA the specific mandate to type approve and accept communications equipment meant for use in Kenya.
He said the Kenya Information and Communication (Importation, Type Approval and Distribution of Communications Equipment) Regulations, 2010 expressly confer on the CA the mandate of type approval and type acceptance outlining how it should be carried out.
“By Regulation 10 of the Kenya Information and Communication (Importation, Type Approval and Distribution of Communications Equipment) Regulations, 2010, the Authority has the mandate to issue a type approval certificate to an applicant for a specific model of communication equipment whether to be for personal use or for sale. This is only after a thorough technical vetting process,” adds CA .
The communication regulatory body adds that section 25 of the KICA further mandates the Authority to license the operation and provision of telecommunications systems and services in Kenya and to set conditions that must be met by the licensees under those licenses including the type of mobile telephone device which may be used or connected to the networks of the licensed mobile service providers.
CA further adds that the said provisions of the KICA granting type approval and acceptance mandate to the Appellant were not impeached and therefore even in a situation in which the law duplicates the roles to different bodies, it is not for the Honourable Court to correct that situation as law making is a preserve of Parliament.
CA adds that the court ignored the averments of the Authority on Kenya’s obligation under Convention of the International Telecommunication Union (‘lTU Convention’) to curb the proliferation of counterfeited telecommunication devices as dictated by Resolution 79 (Dubai, 2014) of the Telecommunication Standardization Sector of the International Telecommunications Union (“ITU”).
” It is also worthwhile noting that the issue of the Appellant’s mandate to curb the proliferation of the fake and counterfeited mobile devices was first determined where the High Court acknowledged that CA had the statutory obligation to require the switch off of counterfeit devices. It has not been stated that there is an attempt to negatively affect genuine phones,” adds CA.
Whereas the Judge properly appreciated the law to the extent that a statutory body can only perform functions vested in it by the law, he erred by purporting to confer upon the Anti-Counterfeit Agency and the Kenya Bureau of Standards the function of type approval and acceptance which is not provided for under their enabling statutes.
They submit that Judge Mativo assumed, in the absence of facts and evidence, that there was a ‘decision’ made by the Appellant and further the High Court assumed that the requirements of Section 6 of the FAAA were applicable. This again was an assumption.
