The petition which challenged an on-going process for the design and installation of a Mobile Management System (DMS) in the mobile communications sector was filed prematurely.

Communications Authority of Kenya v Okiya Omtata Okoiti & 8 others

Civil Appeal No 166 of 2018

Court of Appeal at Nairobi

W Ouko (P), MK Koome, DK Musinga, JJA

April 24, 2020

Reported by Beryl Ikamari

Civil Practice and Procedure - institution of a suit - ripeness - where a petition was brought to challenge an on-going process for the design and installation of a DMS in the mobile communications sector, on grounds that it threatened privacy rights - whether the suit was premature and hypothetical given that the design and functioning of the DMS was still under discussion.

Constitutional Law - national values and principles of governance - public participation - adequacy of public participation - where public participation and consultations, on the design and installation of a DMS in the mobile communications sector,  were still on-going - whether it was possible at that stage to determine whether public participation for the DMS was adequate.

Constitutional Law- fundamental rights and freedoms - consumer protection rights and rights to privacy - allegations that the proposed design and installation of the DMS by the Communications Authority of Kenya would give access to mobile communication device user's private information to third parties - whether under the circumstances consumer protection rights and rights to privacy were violated.

Constitutional Law - constitutional petition - precision in drafting a constitutional petition - whether a petition disclosed any violations of consumer's rights to privacy.

Brief facts

At the High Court, the petitioner challenged the proposed installation of a device known as the Mobile Management System (DMS) by the Communications Authority of Kenya (CAK). He said that it would occasion the infringement of various rights including rights to privacy, fair administrative action, property and consumer protection. The appellant explained that it was concerned about theft of mobile devices and the proliferation of counterfeit or illegal devices. It had therefore found it necessary to create a centralized Equipment Identification Register (EIR) which was the DMS. The creation of such a register was within its mandate. It was necessary to facilitate the implementation of the DMS and creation of a system that could define and identify counterfeit devices and substandard goods, reported lost or stolen devices and instances of SIM boxing operations that had infiltrated the industry and were evading payment of licences and taxes.

In responding to the question of infringement of privacy rights, the appellant said that the system would not create automatic access to the call data records (CDR) or content of such calls concerning any mobile number and the access that was requested from the mobile operators EIR’s and home location register was for purposes of identifying the IMEI, IMSI and MSISDN for each device. The respondent added that the DMS was at design stage and therefore the petition was premature and based on unfounded allegations.

The petition was successful. The High Court issued various orders including orders to the effect that the setting up of the DMS was unconstitutional as it was done without adequate public participation and was a threat to the privacy rights of mobile communication device users. The appellant was prohibited from setting up the DMS in that manner.

The appellant challenged the High Court's decision. It stated inter alia that the High Court failed to hold that the petition was premature or hypothetical and that it considered extraneous and unpleaded matters in concluding that the DMS threatened rights to privacy.

Issues

1. Whether a suit intended to challenge the proposed design and installation of the Mobile Management System (DMS) by the Communications Authority of Kenya was hypothetical and premature.
2. Whether there was adequate public participation in the proposed design and installation of the DMS.
3. Whether the installation of the DMS threatened the consumer’s rights to privacy.
4. Whether the pleadings as drawn disclosed any violations of consumer rights to privacy.

Held

1. As the first appellate court, the court had a duty to re-evaluate and re-analyse all the material that formed part of the pleadings and affidavit evidence which informed the decision of the High Court.
2. The case as pleaded in the petition filed by the 1^st respondent was slovenly drawn; it was made up of generalized allegations that were wholly predicated on unsubstantiated statements taken from newspaper reports and statements made by unnamed technical experts. The probative weight to be given to statements of facts contained in newspaper cuttings, required the maker of the statement to appear in court and be subjected to court room processes for that statement to be admissible in evidence.
3. The pleadings were not elegantly drawn. In an adversarial system, a party was bound by their pleadings and that protected the other party from being ambushed with new claims in the course of a hearing.
4. A petition should set out with a reasonable degree of precision particulars about how alleged acts amounted to infringement of the person's constitutional rights. The petition and the supporting affidavits were based on allegations of what was feared could happen, conjectures or at best unconfirmed sources of information.
5. The High Court did not rely on the 1^st respondent's pleadings alone. There was a supporting affidavit made on behalf of the 7^th respondent which was responded to extensively. Considering that the overarching principle in the administration of justice was to do substantive justice, it was prudent to consider and determine all issues raised in the appeal.
6. The supporting affidavit of the 7^th respondent was in support of the petition and it had letters annexed to it. It was those letters that formed the foundation of the petition and not the unsupported allegations in the petition.
7. The High Court overlooked the statutory mandate of the appellant which was as stated in the Kenya Information and Communication Act, No 2 of 2018 (KICA) that was inter alia to licence and regulate postal information and communication services. The High Court also did not identify the actual probable evidence that led to the conclusion that DMS would intrude on privacy and even if there were issues of concern which were still being addressed. Another key concern that the High Court overlooked was the undisputed fact that there were acknowledged challenges in the sector which needed to be fixed.
8. In fixing challenges in the mobile communications industry, there was a strategy which was implemented in the 1^st phase where about 1.8 million stolen and counterfeit devices were netted and switched off. However, the challenges escalated to another level where the purveyors of counterfeit devices became more high-tech and started cloning genuine IMEI numbers to the counterfeit devices whose detection was not possible. In addition, the appellant was also faced with proliferation of SIM boxing operators who were operating illegally without a licence or remittance of taxes in contravention of the law. Had the High Court considered the nature of those challenges, it would have arrived at a different conclusion. The High Court, in considering those challenges, would have balanced the right to privacy and allow the appellant execute its mandate while following the law and in consultation with the other players in the industry.
9. The High Court over concentrated on the interpretation of an aspect of the term ‘access’ in a narrow sense in regard to retrieving data which it took to mean intrusion of privacy of communication. The High Court did not consider other aspects of ‘access’ such as making use of the resources to address the challenges at hand. In accessing the data there was fear that the right to privacy was likely to be infringed and that fear seemed to have preoccupied the High Court. The right to privacy was important but the issues of abuse by unscrupulous mobile operators also needed to be tackled so as to strike a balance between securing the right to privacy and dealing with the problem without infringing the right to privacy.
10. In setting out the DMS, in pursuit of the appellant’s mandate to regulate the mobile communication sector, the appellant had a duty to abide by the law. There was no concrete evidence that the DMS was going to spy or intrude on private communication other than the unsupported newspaper cuttings.
11. Courts could not undertake the appellant's mandate; they could only adjudicate concrete disputes. There was apprehension that rights could be infringed but it had not crystalized, as meetings with technical teams to discuss the design, architecture and configuration of the DMS were ongoing.
12. There was no credible evidence to demonstrate that the DMS was meant to spy on consumers’ private information other than to net out the illegal operators.
13. There was ongoing public participation. There were ongoing consultations on how the DMS would operate. Since that process was not completed, it would be premature to decide whether public participation was adequate or not, noting that there was no known science of determining that and such a determination would be based on a consideration of several factors.

Appeal allowed.

Orders:-

1. The orders of the High Court of April 19, 2018 were set aside.
2. In exercise of its mandate of developing a DMS system, the appellant had to continue with the consultations that were ongoing with the stakeholders and MNOs prior to the filing of the petition so as to complete the technical and consumer guidelines on the DMS.
3. The guidelines/ regulations should be subjected to public participation.
4. Each party to bear its costs of the appeal.