The Katiba Institute has filed a petition at the Nairobi High Court Constitutional and Human Rights Division, challenging the constitutionality of public notices issued by the Communications Authority of Kenya (CA) and the Kenya Revenue Authority (KRA).
These notices, posted on October 24, 2024, and November 5, 2024, respectively, mandate the registration of mobile devices’ International Mobile Equipment Identity (IMEI) numbers, a move the Institute argues is unconstitutional and risks creating a mass surveillance state. According to the notice, CA and KRA outline new regulations aimed at registering IMEI numbers such that once it is passed:
- Individuals must disclose their mobile devices’ IMEI numbers to the CA and KRA.
- The agencies will establish a master database to store the IMEI numbers.
- Only devices registered in this database (a practice called “whitelisting”) will be allowed to connect to local mobile networks. Unregistered devices will be barred from purchasing SIM cards in Kenya.
Katiba argues that the petition raises critical concerns about the infringement of fundamental rights, particularly the Right to Privacy as IMEI numbers are unique identifiers tied irrevocably to individual devices. When combined with additional data, such as communication histories or location tracking, they can expose highly sensitive personal information. The creation of a centralized IMEI database raises alarms over its potential misuse for mass surveillance, violating Article 31 of the Constitution, which guarantees the right to privacy.
The Institute further argues that the threat to disconnect non-compliant devices amounts to coercion, undermining individuals’ freedom to consent to the disclosure of personal data.
Under Article 35(3) of the Constitution and the Access to Information Act, the government is required to disclose all relevant facts before implementing policies that significantly impact the public. The failure to publish a Data Protection Impact Assessment (DPIA), as required under the Data Protection Act, signals a lack of due diligence and accountability.
Also, the petition contends that the notices were issued without parliamentary approval, violating Article 94 of the Constitution, which vests legislative powers exclusively in Parliament. Regulations affecting public rights must be tabled before Parliament for scrutiny, a step the CA and KRA bypassed. The petition highlights the far-reaching consequences of mass surveillance, including the suppression of free speech, freedom of movement, freedom of the media, and political participation. A surveillance state, the Institute argues, would stifle dissent, intimidate activists, and erode public trust in state institutions.
Further, the requirement to register IMEI numbers under threat of disconnection disproportionately affects marginalized communities who may lack the resources to comply, deepening the digital divide.
Katiba Institute emphasizes that the notices pose a severe threat to Kenya’s democratic principles and the Bill of Rights. The Institute is urging the court to halt the implementation of these regulations, scheduled to take effect on January 1, 2025, until adequate safeguards are put in place.
On November 21, 2024, the High Court of Kenya issued a conservatory order halting the implementation of the controversial IMEI regulations. Justice Mwita ruled:
“A conservatory order is hereby issued suspending implementation of the notice issued by the Communications 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.”
This development ensures that the contentious regulations will not take effect as planned on January 1, 2025, providing temporary relief to mobile users and privacy advocates. The suspension allows time for legal scrutiny of the regulations’ constitutionality and adherence to privacy laws.
The case is set for further hearing on December 18, 2024, where the court will decide whether to permanently nullify or amend the notices.