Court Extends Suspension of KRA, CA Rules on Mobile IMEI Declarations in Kenya

The High Court in Nairobi has extended interim orders suspending the implementation of public notices issued by the Communications Authority of Kenya (CA) and the Kenya Revenue Authority (KRA), which required individuals entering Kenya to declare the International Mobile Equipment Identity (IMEI) numbers of their mobile devices. This decision was made by Justice Chacha Mwita during a hearing on Wednesday, as he directed respondents and interested parties to file their responses and written submissions, following instructions issued in the court’s earlier order on November 22. The case is set to be mentioned again on February 21, 2025.

The conservatory orders remain in place, effectively halting the implementation of the directive until the petition filed by the Katiba Institute is heard. The petitioner has raised significant concerns about the directive, arguing that it poses serious constitutional issues. According to the Katiba Institute, the requirement to disclose IMEI numbers could enable mass surveillance, allowing authorities to monitor individuals’ movements and communications. Such powers, the institute warns, could be misused to suppress dissent, monitor political opponents, or intimidate activists, thereby threatening fundamental freedoms, including free speech and political participation.

The IMEI numbers, which are unique identifiers tied to a device’s hardware, enable mobile providers to track a phone’s location within a 100-meter radius and access its communication history. The Katiba Institute has argued that allowing the CA and KRA access to such data without adequate safeguards could result in the creation of a surveillance system that infringes on the privacy and rights of Kenyan citizens. The petitioner emphasized that there is insufficient clarity about how the IMEI database would be managed, including who would control it, who would have access, and what measures would be in place to secure the data from misuse or abuse.

Further concerns were raised about the economic and social implications of the directive, particularly the threat to disconnect non-compliant devices. The Katiba Institute highlighted that such a measure could exacerbate the digital divide, as it would disproportionately affect marginalized communities. With digital tools being critical for economic, educational, and social participation, disconnecting devices could harm the very individuals who rely on these tools the most. The petitioner stressed the importance of ensuring inclusivity in the country’s digital transformation and warned that the directive could undermine these efforts.

The controversy surrounding the directive originates from an announcement made by the Communications Authority of Kenya on October 24. The CA revealed that it was collaborating with the KRA to enhance tax compliance for mobile devices imported or assembled in the country. Under the initiative, mobile phone importers and assemblers were required to include IMEI numbers in their import documentation, which would then be registered in a National Master Database managed by the CA and KRA. The database was intended to ensure that only tax-compliant devices would be connected to mobile networks. Devices not listed as compliant would be flagged in a gray list for eventual blacklisting from network access.

The initiative, originally slated to begin on November 1, 2024, has faced widespread criticism from various stakeholders, including privacy advocates and civil society groups. Critics have questioned the directive’s alignment with constitutional protections for privacy and expressed concerns about its potential impact on digital rights. Many have argued that the lack of transparency and clarity regarding the directive raises serious ethical and legal questions.

In response to the backlash, the High Court’s extension of the suspension provides temporary relief for those concerned about the directive’s implications. However, the case remains a pivotal moment for Kenya’s legal and digital landscape, as it addresses the complex intersection of tax compliance, privacy, and access to technology. The court’s ultimate decision will likely have far-reaching consequences for the balance between regulatory enforcement and the protection of individual rights in Kenya. The next hearing on February 21, 2025, is expected to bring further arguments from both sides, with the outcome set to shape the country’s approach to digital governance, privacy, and inclusivity.