The issue of the government spying on phone calls and text messages began on January 31st, 2017, when the government ordered Safaricom, Airtel, and Orange-Telkom to allow Broadband Communications Services Ltd to tap into their computers.
This move by the government has been opposed by many bringing into light that some of the rights are being violated, such as the right to privacy. Communications Authority, in their defense, says that the system is meant to stop the proliferation of illegal devices.
In a decision that was delivered by Justice Mativo in March 2020, he ruled that the integration of the Device Management System(DMS) by the three leading mobile telephone companies and the Communications Authority accessing information from the mobile telephones is a breach of the right to privacy and consumer rights.
Mr. Stephen Mutoro of the Consumer Federation of Kenya(Cofek) welcomed the decision by asking the government to discard the plan and find a better way of dealing with counterfeit devices.
The CA, however, went ahead and appealed in April, and a bench of three judges quashed Justice Mativo’s judgment stating that the development of DMS was at its developmental stage. The case has then moved to the Supreme court, whereby LSK though not an original party to the suit, has joined the move to block the government from tapping private phone conversations.
Under section 4 of the Law Society Act of Kenya, one of the objects is to assist the Government and the courts in all matters affecting legislation and the administration and practice of law in Kenya.
LSK has argued that the Court of Appeal judges have wrongfully interpreted the law while disposing of the case. The lawyers have also said that public participation, as contended by activist Okiya Omtatah who initially filed the suit, is a national value that binds all state organs, state officers, and public officers in the principle of governance.
The appeals read,” LSK asserts that the Court of Appeal arrived at ‘a decision not anchored on evidence’ and drew conclusions so perverse that no reasonable tribunal would arrive at them”.Omtatah and LSK continue to argue that the DMS will be meddling in other people’s conversations by intercepting and recording of the mobile data.