Kenya’s plan for tracking down counterfeit phones has digital rights activists concerned

Kenya’s government is set to roll out a controversial plan that it says will help tackle the problem of counterfeit mobile devices. But digital rights activists and telecommunications experts believe the program is “excessive” and threatens Kenyans’ right to privacy.

On April 28, after over six years of back-and-forth on the issue, the Supreme Court granted the Communications Authority of Kenya permission to implement the Device Management System (DMS) program. It allows the communications regulator to access the unique identification number for each mobile device active in Kenya, so it can deny services to counterfeit devices.

Mercy Mutemi, a Nairobi-based digital rights lawyer, told Rest of World the government needs to find less intrusive ways to tackle the problem of counterfeits because “once you go down that rabbit hole [of surveillance], there’s no telling what the limit will be.”

Mutemi was part of a group of lawyers who filed a Supreme Court petition in February against the communications regulator and 10 other entities. This appeal — along with several others that challenged the DMS — was dismissed.

“Combating counterfeit devices may be a legitimate interest that the government is seeking to address. However, doing so through the Device Management System is excessive,” Mutemi said. “There are many ways to regulate the trade of counterfeit devices that aren’t as intrusive and that is what the government needs to explore.” Kenya is reportedly one of the biggest markets for counterfeit goods in Africa — mobile phones top the list of the highest-selling fake products in the country. Counterfeit smartphones cost the country’s economy millions of shillings in evaded taxes every year.

The communications authority had first introduced DMS in 2016, and started quietly testing it the following year. The program has since been under fire. In 2017, major telecommunications service providers such as Safaricom and Telkom Kenya had raised concerns over state surveillance and privacy infringement. In 2018, Okiya Omtatah Okoiti, then executive director of the Kenyans for Justice and Development nonprofit, dragged the communications regulator to court, stating that DMS allowed the government to carry out illegal surveillance by accessing users’ personal information like location and phone calls. The court ruled against DMS, calling it “a threat to the subscribers’ privacy,” and urged the regulator to employ less restrictive and intrusive measures.

In 2020, however, the ruling was overturned by the Court of Appeal, which ruled that the initiative should continue with public participation and proper consultation with stakeholders.

After a group of lawyers appealed the decision in the country’s highest court, the battle has now ended in favor of the communications regulator. “The regulator ought to be more articulate on how it wishes to uphold privacy protections to allay fears of spying through the DMS installation,” Nanjira Sambuli, a technology and international affairs policy fellow at Carnegie Endowment for International Peace, told Rest of World. Sambuli said the regulator had somewhat denied Kenyans their constitutional right to public participation before DMS was implemented, which makes it more important for the body to proactively prove that the program wouldn’t infringe on their right to privacy.

“Even though they have been cleared by the Supreme Court to roll it out, compliance of laws should not be at a steep trade-off, including the perception of privacy infringement,” Sambuli said. The Kenyan communications regulator did not respond to questions from Rest of World by the time of publication. 

Safaricom, Kenya’s largest telecomms company, had declined the regulator’s request to roll out DMS on its network in the past, after it failed to adequately address Safaricom’s queries on data privacy, reported Business Daily Africa. In the past, the Kenyan government has proposed surveillance tactics as ways to combat corruption and financial crimes. In December 2022, the country’s financial intelligence unit proposed spying on the accounts of high-ranking politicians to check corruption. Earlier this year, the revenue authority wanted to begin monitoring financial transactions to prevent tax evasion.

Ali Hussein Kassim, who runs Kenyan consulting firm AHK Group, told Rest of World he believes the court ruling won’t be the end of the matter when it comes to DMS. “We live in an extremely volatile world, but the Kenyan Constitution is strong enough to stop this DMS program if we can prove that the government is solely focused on using it to snoop on citizens,” Kassim said.