The High Court has temporarily suspended implementation of a public notice issued by the Communications Authority (CA) of Kenya that gave the Taxman the leeway to track mobile phones for tax compliance.
The notice was posted on CA website last month under the headline "Public notice on enhancing the integrity and tax compliance of the mobile devices in Kenya"
It stated that all local assemblers, importers, retailers and wholesalers, as well as mobile network operators must upload the International Mobile Equipment Identity (IMEI) number of each assembled or imported mobile device to KRA portal to facilitate the tax compliance monitoring.
Justice Chacha Mwita who issued the order said the notice and another one issued by the Kenya Revenue Authority (KRA on November 5 this year will remain suspended until December 18 this year.
Mwita in issuing the order directed Katiba Institute (petitioner) to immediately serve it's papers on the CA, KRA and AG who have been listed as respondents in the case. Responses are to be filed within seven days.
The order he said will remain in force until December 18 when parties will be required to highlight their submissions in the case. Katiba in its documents field before the Milimani law Courts said the notice was unconstitutional as it didn't follow the set out legislative procedures.
"The notice issued by CA and referred to as regulations were neither tabled in Parliament nor subjected to public participation as required by the constitution," says Katiba.
The move they said went against article 35 of the constitution which requires all relevant facts to be published prior to formulating important policies and announcing decisions impacting the public. ‘
The respondents were under a duty to proactively disclose the Data Protection Impact Assessment conducted on the collection of IMEI data,’read their documents in part. Based on these, they asked the court to suspend both notices. "Without a data impact assessment, the risk of violating the right to privacy and other fundamental rights and freedoms remains unmitigated," they said .
They told the Judge that "contrary to the requirement that free and informed consent must be obtained prior to the collection of personal data, the respondents have resorted to duress by threatening to deregister any mobile phone device whose IMEI number is not disclosed,"
Katiba informed that the court that without sufficient safeguards and guardrails to the collection of IMEI numbers, there is a real risk that Kenya will easily be turned into a surveillance state.
‘the lack of sufficient guardrails can be exploited to stifle dissent, monitor political opponents or intimidate activists, creating a chilling effect on free speech and political engagement,’ they said.
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