The High Court of Kenya has delivered a resounding blow to directives issued by the Communications Authority of Kenya (CA) and the Kenya Revenue Authority (KRA). These directives, which sought to compel the registration of mobile phone IMEI numbers for tax compliance purposes, have been nullified, marking a crucial victory for privacy advocates and proponents of constitutional governance.
The now-defunct notices, initially published in October and November of last year, had imposed a stringent requirement on local mobile phone assemblers and importers: the mandatory registration of IMEI numbers with the KRA. Furthermore, KRA regulations from November 5th of last year extended this obligation to travelers entering Kenya, demanding the declaration of their devices and the provision of IMEI numbers at ports of entry if they intended to use their phones during their stay. The implications were far-reaching, potentially creating a comprehensive database of mobile devices linked to individuals, raising immediate concerns about surveillance and data privacy.
The legal challenge was spearheaded by the Katiba Institute, a prominent constitutional advocacy group, which filed a petition in November of last year, arguing the unconstitutionality of these directives. Justice Chacha Mwita, presiding over the case, meticulously reviewed the arguments and ultimately allowed the petition, citing several compelling reasons for the nullification.
Crucially, Justice Mwita determined that the notices were not grounded in any existing law, rendering them arbitrary and unenforceable. This finding underscores a fundamental principle of rule of law: government actions must always derive their authority from established legal frameworks. Beyond the lack of legal basis, the court also found that the directives enabled unchecked state surveillance, a grave concern in any democratic society. The potential for misuse of such a comprehensive database, without adequate safeguards, posed a significant threat to individual liberties.
Perhaps most critically, the High Court emphasized that the directives violated Articles 24 and 31 of the Kenyan Constitution, which are foundational provisions protecting fundamental freedoms and the right to privacy. This aspect of the ruling sends a powerful message about the judiciary's role in safeguarding citizens' rights against potential overreach by state agencies.
The Katiba Institute's arguments contended that the regulations were not subjected to public participation – a vital democratic process ensuring that citizens have a say in policies that affect them – nor were they tabled in parliament for legislative scrutiny. These omissions further undermined the legitimacy and legality of the directives. The Communications Authority's instruction to mobile network operators to only connect devices after verifying their tax compliance through a whitelist database, provided by the authority, was also part of the challenged framework, illustrating the extensive control the directives aimed to exert.
The High Court's decision is a significant win for civil liberties in Kenya. It reinforces the importance of a robust legal framework for any state action, particularly those impinging on privacy. It also serves as a potent reminder to government agencies of their obligation to adhere to constitutional principles, including the right to privacy and the necessity of public participation in the formulation of policies that impact the daily lives of citizens.
