The Law Society of Kenya has escalated the battle over a controversial device procured by the Communication Authority of Kenya, feared to spy on mobile phone users.
The society through its lawyer Dudley Ochiel now joins the list of Kenyans trooping to the East Africa Court of Justice (EACJ) complaining about the Kenyan judicial system.
LSK in its case against Attorney General, accuses the Supreme Court of violating Kenyan law and the East Africa Community (EAC) treaty by dismissing the appeal it filed before the highest court in Kenya.
According to the lawyer Eric Theuri-led lobby, the Supreme Court failed to correctly define who a 'person' in a case is, by limiting it to only the parties that were involved in a dispute. The case on Data Management System (DMS) initially involved Busia Senator Okiya Omtatah against AG and CA.
Safaricom, Telkom, and Airtel were interested parties.
LSK came in after the Court of Appeal overturned High Court's decision barring CA from installing DSM.
Omtatah did not appeal the case. However, LSK moved to the Supreme Court arguing that the Court of Appeal failed to factor in the evidence submitted to show that the device would allow third parties access crucial information about callers.
However, Supreme Court Justices Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, and Isaac Lenaola dismissed the case, as LSK was not a party to the case.
In the EAC, LSK now argues that Kenya's highest court unfairly locked it out from accessing justice. At the same time, it argues that the Supreme Court also threw out Omtatah's case.
"The Supreme Court of Kenya's decision suffers wrongs to be without remedy by foreclosing all possibility of appeals by aggrieved nonparties despite Articles 22 and 258 of the Constitution and despite Rule 36 of the Supreme 20 Court of Kenya Rules, 2020. The Supreme Court further inequitably allowed a wrong to be without remedy by dismissing the cross-appeal by Okoiti-a main party," court papers before the regional court read in part.
In the Court of Appeal in Kenya, Justices Martha Koome (current Chief Justice) William Ouko (now a Supreme Court judge), and Daniel Musinga overturned a High Court's judgment which outlawed installation of DSM.
The three judges faulted Justice John Mativo (now Court of Appeal judge) saying he failed to appreciate there was no credible evidence to demonstrate the system was meant to spy on consumers' private information. The High Court had scuttled plans by the regulatory body to install the system and force mobile service companies to connect their systems to it.
Fears were that CA would listen in on mobile phone conversations but it insisted DSM will help to detect fake mobile devices.
The appeals court found that consultations with telecom operators Safaricom, Airtel, and Telkom Kenya on the design of the system were not yet complete.
They ruled that although there were concerns about the right to privacy, it was equally important to weed out illegal devices but in consultation with the three top mobile service providers.
"The right to privacy is 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. It is clear to us that there was no concrete evidence that the DMS was going to spy or intrude on private communication other than the unsupported newspaper cuttings," judges ruled.
Justice Mativo had found that CA was going overboard in its mandate because there was already an anti-counterfeit agency in place, adding that telecom operators could also detect and block blacklisted devices.
