Media owes everyone accurate reporting of court decisions

In an opinion piece published on April 28, LSK President Nelson Havi (pictured) argued that it was wrong for the Judiciary to demand a correction and an apology from the Standard following reports that the courts had given the government the green light to tap private phone calls. Indeed, it is unprecedented for the Courts to make such requests of media houses.

Mr Havi also stated that even though the final orders of the Court of Appeal did not expressly give the government permission to tap phone calls, such permission could be gleaned from the body of the appellate court’s decision. He says the devil is in the details but the truth is that the court gave no such permission.

To understand the judgment, it helps to go back to the High Court where activist Okiya Omtata challenged a decision of the Communications Authority to install a Device Management System on mobile operators’ networks.

Omtata’s case was based primarily on fears that the device would give CA access to confidential communication in breach of the constitutional right to privacy.

The Communications Authority denied this, arguing that the system was meant to access only the unique identification numbers of mobile devices – popularly known as IMEI numbers - so that it could flag counterfeit devices. The High Court agreed with the Petitioner’s concerns over privacy and issued orders stopping the project.

The High Court also held that whereas the switching off of counterfeit phones was a legitimate objective, the task of fighting counterfeit devices did not fall within the mandate of the Communications Authority.

Additionally, there were other measures of dealing with counterfeit phones that did not involve a device with potential to access protected information.

The same objective could be achieved through the enforcement of anti-counterfeit and importation laws by KEBS, the Anti-Counterfeit Authority, KRA, the Ministry of Trade and the Police. It could also be done through initiatives similar to that run by mobile operators when they switched off 1.89 million counterfeit phones in 2012.

The High Court also faulted the Communications Authority for proceeding with the project without undertaking public participation or concluding consultations with mobile operators who had raised concerns about the device. The authority had also failed to secure the approval of Parliament which was required for the new regulatory process.

However, the High Court declined to hold officers of the authority personally liable for flouting the law. No one from the authority had been named as a respondent.

The court also rejected calls to cancel the tender for the DMS project since no evidence had been tabled to challenge the tender process.

The Communications Authority had paid KSh. 190 Million to buy the device from Broadband Communications Networks Limited and was to make additional monthly payments of KSh. 1 million to the supplier.

When the Communications Authority appealed, the Court of Appeal held that the entire case was premature since the authority had not done anything to breach the privacy of mobile subscribers by the time the petition was filed.

Additionally, the Court of Appeal held that the fears that the device management system would breach private communication were not based on any concrete evidence other than newspaper reports citing unnamed technical experts who were never called to testify in court.

The appellate court also ruled that given the serious challenge posed by counterfeit devices, the Communications Authority had a legitimate interest in deploying a system to flag such devices except that this had to be done in consultation with mobile operators and the public so that there is a balance between the eradication of counterfeit devices and the protection of the privacy of subscribers.

The Court of Appeal also took the view that by the time the petition was filed, the authority was involved in ongoing consultations with mobile operators and that there was still room to consult the wider public before the device was installed and deployed.

The appellate court held that if these consultations had been allowed to run their course, they would have enabled all parties to agree on how to address the fears over privacy and consumer rights or any other issues that would have arisen.

On these grounds, the Court of Appeal concluded that rather than declaring the whole DMS project null and void, the High Court should have allowed it to continue provided that the authority is directed to follow the law and ensure the protection of the right to privacy.

The Court of Appeal was emphatic that whereas counterfeit devices pose a serious challenge, any interventions geared towards dealing with counterfeits must be implemented in a manner that respects the privacy of consumers.

Mobile operator Safaricom had argued that the Communications Authority did not give room for comprehensive discussions on the regulatory framework that would address concerns about privacy and consumer rights.

The appellate court’s final orders permit the authority to proceed with the project provided that it engages in consultations with the mobile operators and members of the public on the parameters of the device.

As ordered by the Court of Appeal, these consultations will give mobile operators and the wider public room to raise concerns about privacy so that the device is configured in a manner that does not infringe on the privacy of mobile subscribers.

If this does not happen, the operators will be at liberty to reject the device or to initiate fresh litigation.

In the circumstances, it is quite clear that reports saying that the government was given the green light to tap private conversations were erroneous.

The newspaper story that carried this report also had the names and photos of the three Court of Appeal Judges who rendered this decision.

This style of reporting exposes not just the Judiciary as an institution, but also the individual judges, to unwarranted hatred and ridicule in the eyes of the public and send the general public into unnecessary panic.

These incidences illustrate the dangers of inaccurate reporting of court rulings, which should not be mistaken for criticism of the Judiciary. In an open democracy, the Judiciary should be open to criticism of its judicial and administrative decisions and the media should be at the forefront in this without fear of reprisals.

However, such criticism must be based on accurate reports or it will stir unwarranted resentment against individual judges and erode public confidence in the Judiciary as a whole.

To avoid similar incidences, the Judiciary should consistently issue summaries of decisions that touch on the wider public to ensure accurate reporting of these decisions. These should be disseminated through multiple channels including social media.

Ogutu teaches law at The University of Nairobi:   kenogutu@uonbi.ac.ke