The Communication Authority of Kenya (CA) has been allowed by the Court of Appeal to install a mass surveillance system that will be able to spy on your phone conversations.
The ruling delivered last week overturns a ruling by High Court Judge John Mativo, who had outlawed the installation of the controversial Data Management System (DMS).
According to a three-bench jury that included William Ouko, Daniel Musinga and Martha Koome, there is no evidence that the system is meant to spy on consumers.
Initially, former CA Director General Francis Wangusi had told the three telcos in the country, Safaricom, Airtel and Telcom that the system was meant to access information from illegal devices. However, the telcos opposed the system, saying that it was a spyware, triggering a court battle.
In his ruling, Justice Mativo found that the system infringed the right to privacy.
“Accessing mobile telephone subscriber’s information in a manner other than that which is provided under the law infringes the right to privacy. It follows that for the DMS to be lawful, the reason given must meet the threshold of a reasonable, justifiable, and a democratic society,” ruled Justice Mativo.
However, the three bench jury overruled the right to privacy, indicating that operaters needed to be tackled so as to strike balance.
“The right to privacy is important but the issues of abuse by unscrupulous mobile operators also needed to be tackled so as to strike balance between securing the right to privacy and dealing with the problem without infringing the right to privacy. It is clear to us that there was no concrete evidence that the evidence that the DMS was going to spy or intrude on private communication other than the unsupported newspaper cuttings,” the three judges ruled.
The three judges also found that consultations with the telcos on the design of the system.