A mobile phone number is a digital identifier, and its deactivation or resale after prolonged inactivity poses a threat to the right to privacy, the High Court has ruled.
In a landmark decision, the court held that a registered mobile number is linked to sensitive personal data and qualifies for protection under Article 31 of the Constitution.
The court noted that losing a mobile digital identity through reallocation or recycling, without assessing the reasons for inactivity or allowing the registered user to reclaim the number, creates a risk of unauthorized disclosure of personal information.
Such information, the court said, may include details about a person’s family or financial affairs, which could be exposed to third parties once the number is reassigned.
“To answer the question of whether a person’s registered phone number constitutes a digital identity, this Court finds in the affirmative,” the court stated.
The court directed Attorney General Dorcas Oduor, in collaboration with relevant agencies, including the Office of the Data Protection Commissioner, the Communications Authority of Kenya, and the relevant ministry, to implement measures to safeguard digital identities linked to mobile numbers.
The court further ordered that where a mobile number is deactivated, the previously registered owner must be notified.
If the owner cannot be reached, a public notice should be issued through a documented verification process confirming that the individual cannot be located or has relinquished rights to the number.
Additionally, technical safeguards must be established to prevent unauthorized access to or transfer of personal data associated with the previous owner when a number is reassigned.
The court noted that although the Constitution does not explicitly recognize digital identity as a fundamental right, it emphasized that SIM card registration links mobile numbers to official personal identification records.
As such, a mobile number serves as a means of identifying a person, directly or indirectly.
The ruling arose from a petition filed by Erastus Ngura Odhiambo, a prisoner serving a jail term, who challenged the deactivation of his mobile line due to prolonged inactivity.
Odhiambo argued that mobile numbers form part of an individual’s digital identity and are tied to sensitive personal data, which may be exposed if reassigned to third parties.
He further contended that prisoners are particularly vulnerable, as incarceration often results in the involuntary inactivity of their mobile lines.
The petitioner said this exposes inmates to privacy breaches when their previously registered numbers are reassigned without notice, allowing new users to receive information intended for the original owner.
In the judgment, the court affirmed that imprisoned persons retain all rights and fundamental freedoms in the Bill of Rights, except where such rights are incompatible with incarceration.
“Automatic loss of digital identity risks infringing on the right to privacy, as personal information linked to that identity may spill over to third parties without consent,” the court said.
The court found no evidence that maintaining a prisoner’s digital identity is incompatible with imprisonment.
“Imprisonment should not translate into the extinction of a prisoner’s digital identity,” added the court.
The court directed the Attorney General, in conjunction with the Kenya Prisons Service and other relevant agencies, to develop and gazette regulations ensuring the preservation of prisoners’ digital identities linked to mobile numbers for the duration of their incarceration.
This includes creating a system for notifying mobile network operators of a prisoner’s status, ensuring their registered numbers are neither reassigned nor recycled, and allowing them to resume use upon release.
The court warned that if these directives are not implemented within six months, the reassignment or recycling of previously registered mobile numbers will automatically cease to protect constitutional rights.
However, the court clarified that restricting prisoners’ access to or use of mobile phones while in custody is not unconstitutional.
