The High Court has suspended a directive by the government requiring mobile phone importers and assemblers to submit devices' International Mobile Equipment Identity (IMEI) numbers from January 2025, pending determination of a suit filed by Katiba Institute.
The Communications Authority of Kenya (CA) had on October 24, 2024, published a notice requiring disclosure of IMEI numbers for mobile phone devices in use in the country.
Katiba Institute moved to court arguing that lack of sufficient safeguards after 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 that the directives were not tabled in Parliament or subjected to public participation, hence were unconstitutional, null, and void.
“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.
The CA had explained that the new IMEI registration system was proposed by the presidency to ensure tax compliance and uphold the integrity of products in the market.
But Katiba Institute says the 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, which is in 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 lobby said the threat made by the government to switch off non- compliant mobile phone devices will deepen the digital divide.
The divide, according to Katiba Institute, impacts a range of economic, educational, and social outcomes, as the internet and digital tools become essential for participation in modern society.
