Court of Appeal Orders Communications Authority to Follow the Law in Designing Anti-Fraud System

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Kenya HIgh Court

The Court of Appeal ordered the Communications Authority of Kenya (CA) to continue with stakeholder consultations over the proposed installation of the mobile management system (DMS).

In a judgment case (Civil Appeal No. 166 of 2018), the key issues for them to determine were whether the proposed installation of the DMS by the CA would herald an error of public control and eavesdropping of people’s privacy by intercepting and recording of communication and mobile data and whether CA adequately engaged stakeholders or allowed public participation in the design and implementation of DMS.

The DMS system is intended to do a number of things. Define a whitelist of IMEIs to access GSM services, identify counterfeit devices, identify substandard goods which have not met type approval requirements, identify and distribute information about mobile phones reported lost and/or stolen to all service providers and identify instances of SIM boxing operators.

The court found out that the Communications Authority of Kenya’s decision to implement the DMS system was adopted in a manner that was inconsistent with the provisions of the Constitution, section 5 (2) of KICA and the Statutory Instruments Act.

The Court of Appeal directed the regulator to continue with consultations that were going with the stakeholders and mobile network operators prior to the filing of the petition also as to complete the technical and consumer guidelines of the DMS. The court also said that the guidelines/regulations should be subjected to public participation.

Broadband Communications, the designated project manager for the implementation of the DMS project claimed that the system will benefit the economy by blocking the use of illegal mobile devices, minimizing theft of mobile devices, blocking use of counterfeit mobile devices, stop sim boxing and cut revenue leakages from mobile operators. They also said that the system is incapable of spying on the calls or SMS’s or mobile transactions as shown by a letter from the manufacturer of the device.

Apparently, Broadbank Communications risks losing $10,004.89 (Kshs 1 million) monthly and the CA risks losing $1,878,223.45 (Kshs 201 million) as a consequence of the orders that were granted.

In the judgment, Mr Wangusi, CA’s former Director-General stressed that the DMS was at its design stage hence the petition before the High Court was premature and it was not true to make unfounded allegations that it was a guise to access peoples calls and mobile provider databases.

“In our view the orders that were commended themselves to the situation was not to declare the whole DMS project null and void, it was to allow the construction of the DMS to continue while abiding by the law and ensuring protection of freedom of privacy,” the Court of Appeal said.