BY SAM ALFAN.
The High Court has temporarily suspended a directive by the government requiring importers and assemblers of mobile phones to submit device International Mobile Equipment Identity (IMEI) numbers, which was to take effect from January 2025.
In a notice on October 24, Communications Authority of Kenya (CA) said importers and assemblers would be required to disclose IMEI numbers for mobile phone devices in use in the country.
And on November 5, Kenya Revenue Authority (KRA) directed all phone manufacturers, retailers, and mobile network operators to upload each device’s IMEI number to a KRA-provided portal, for tax compliance.
Katiba Institute challenged the notice, arguing that it was unconstitutional.
According to the lobby, there were no sufficient safeguards to disclosure of IMEI numbers, a move that was in violation of fundamental rights and freedoms of an individual and may lead to illegal and unwarranted State surveillance.
“In the meantime, a conservatory is hereby issued suspending implementation of the notice issued by Communication Authority of Kenya on 24th October 2024 titled “Public Notice on enhancing tax compliance of mobile Devices in Kenya” as well as the subsequent notice by Kenya Revenue authority on 5th November 2024 until 18th December 2024,” said Justice Chacha Mwita.
Katiba Institute said the unnecessary creation of a master database of IMEI numbers threatens the right to privacy and is a building block towards unwarranted and unmitigated mass surveillance.
The lobby group added that without the proactive disclosure of a Data Protection Impact Assessment, it appears that the government’s intention is to collect personal data without conducting a data protection impact assessment in a violation of the Data Protection Act.
“Contrary to the requirement that free and informed consent must be obtained prior to the collection of personal data, the Respondents have resorted to duress by threatening to deregister any mobile phone device whose IMEI number is not disclosed,” the lobby group said.
According to Katiba Institute, mass surveillance negatively impacts the right to freedom of expression, the right to freedom of the media, the right to access information, the right to freedom of movement and the right to a fair trial, among other rights.
“The Respondents (government) have not provided information of sufficient safeguards and guardrails that may include details of who will have effective control of the IMEI data database, who will have access to the database, what security measures have been put in place in relation to the database, and the availability of access to effective remedies to persons aggrieved by the collection of the IMEI data,” said the lobby.
The Director General of CAK through an undated notice, signed and posted on the CAK’s X account and website on 24 October 2024, titled Public notice on enhancing the integrity and tax compliance of the mobile devices in Kenya’.
The CA notified all stakeholders, including mobile network operators involved in the local assembly, importation, distribution and connection of mobile devices to local networks of new requirements set to take effect on 1 January 2025:
“All local device assemblies must upload the International Mobile Equipment Identity (IMEI) Number of each assembled device to the KRA-Provided portal,” said the CA
All mobile phone importers (for sale, testing, research, or any other purpose) will be required to disclose the International Mobile Equipment Identity (IMEI) Number in their respective import documents submitted to the Kenya Revenue Authority. This disclosure is mandatory for the registration of the devices in the National Master Database on Tax-Compliant Devices.
“All retailers and wholesalers of mobile devices must ensure that they only retail or distribute mobile devices that are tax-compliant. The Authority will provide a platform for verification of the tax compliance. status of mobile devices before purchase by retailers or end users,” added statement.
Mobile network operators must ensure that they only connect devices to their networks after verifying the tax compliance status through a whitelist database of compliant devices, which will be provided by the Authority.
“Operators will also be required to provide for the grey- listing of non-compliant devices to facilitate regularisation within a prescribed period failing which the devices will thereafter be blacklisted,” said the statement.
In quick succession,KRA posted an undated Public Notice on its X account and website on 5 November 2024. On its X account, the Kenya Revenue Authority introduced the Public Notice:
