BY SAM ALFAN.
The High Court has quashed the government directive requiring importers and assemblers to submit device International Mobile Equipment Identity (IMEI) numbers.
In a big win for Kenyans on protection of their data,
Justice Chacha Mwita said the directive by the Communications Authority of Kenya (CA), was not anchored on any law.
The Judge Chacha further said the directive to submit IMEI numbers violated articles 24 and 31 of the Constitution, infringing on the right to privacy.
He said the collection of IMEI numbers enabled unchecked state surveillance, making it unconstitutional.
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. But the directive, which was to take effect in January 2025, was suspended by the court pending the determination of the case.
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.
The lobby said 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.
Katiba Institute said the unnecessary creation of a master database of IMEI numbers threatened 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.
Communications Authority of Kenya (CA) published a notice on October 24, requiring disclosure of IMEI numbers for mobile phone devices in use in the country.
A few days later, on November 5, Kenya Revenue Authority had 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 moved to court arguing that without sufficient safeguards disclosure of IMEI numbers, risks the fundamental rights and freedoms of an individual and may lead to illegal and unwarranted State surveillance.
The lobby group further said the notices issued by the CA and referred to as regulations, were not tabled in Parliament or subjected to public participation, hence unconstitutional, null, and void for having not been made following clearly set out constitutional and legislative procedures.
