Kenyans Should Reject Cellphone Surveillance

I am not,and never could be, an advocate of the surveillance state, but the Communications Authority of Kenya’s latest monitoring of cellphone use proposal may not be such a dumb idea. My thesis; such a dumb idea may actually be a clever ploy.

I grew up at a time where the rogue Kenya African National Union(KANU) single-party government invaded the privacy of our homes and our communication with impunity. Thankfully, most Kenyans have never heard of Rev. Lawford Ndege Imunde and his jailing for six years for an entry in his personal diary, which a policeman convinced a High Court Judge was sedition against the good government of Kenya.

There is a narrow point of law as to whether material that is never published can incite disaffection against government, but it is also useful to inform our children that a personal diary was a book people carried around into which they wrote personal thoughts and musings before Facebook, Twitter and Instagram came to curse Kenya.

What the story of Reverend Lawford tells me is that if we do not jealously guard our right to privacy we most definitely will suffer invasions of privacy by state actors. This is not an idle issue. It is the tendency of government officials around the world – since time immemorial (so please Kenyan officials do not take this personally) – to want to know what is going on up to your bedrooms.

George Orwell’s 1984 predicted, in 1948, the rise of a Big Brother state in which each citizen is constantly surveilled by ubiquitous high-technological means to the extent that even ideas and dreams are the subject of enquiry by the thought police.

Our Founding Fathers,the people who set this country off the slopes of poor governance and economic and social degradation, knowing that this tendency must be controlled took the deliberate effort of entrenching limitations on government’s power to snoop on its citizens. This is why Section 21 of the Independence Constitution – later section 79 and now Article 31 of the Constitution of Kenya protects communications from interference.

Kenyans have always had a right to privacy of correspondence, including when using telecommunication devices such as mobile phones. However, Kenyans must also be aware that if they had a choice, some would seek to do away with our constitutional right to privacy and freedom from interference with our correspondence. Going by what I have recently read, I understand Mr. Francis Wangusi, the Director General of the Communications Authority of Kenya, to be such a person.

Article 24 of the constitution is clear that any limitation to my right to privacy and freedom from interference with my correspondence must take the form of a law – which must explicitly state why this limitation is necessary and which constitutional provision is being limited. Nonetheless,I can see that I and many Kenyans who should have done more to stop its rise have allowed a creeping surveillance state to appear ostensibly to protect us from terrorists and other bad people. Thus I am filmed without being asked for permission each and every day on roads and as I enter buildings across Kenya. Kenyans accept CCTV without question, mostly on the dubious doctrine that only the guilty or criminal would object to security cameras. But a line must be drawn somewhere, and Mr. Wangusi has given us an opportunity to debate where the line really is.

Wangusi’s proposal extends the daily coverage to telecommunications and the internet by a bureaucracy eager to achieve a very dubious objective. Kenya’s telecoms regulator has apparently already taken on a contractor who will enable it, if Telcos agree to give this contractor access to their networks, to identify and block counterfeit mobile phones with fake IMEIs and thus ensure that no counterfeit cell phones can use Kenyan cellular networks.

That sounds fine until one asks; what role does the Communications Authority of Kenya have in ensuring that counterfeit consumer goods do not get used in the telecoms sector – perhaps this is a job for the Kenya Anti-Counterfeiting Agency, in liaison with cellular network providers? Just a thought. Actually, the Kenya Anti-Counterfeiting Agency is already working with cell phone manufacturers along the same lines.Google it!

Also research why in 2014, Vodafone (controlling owner of Kenya’s largest Telco Safaricom) reported that in Kenya technical (actually legal) limitations prevented direct access of the sort now sought by the Communications Authority of Kenya. This was revealed in a global report in which Vodafone revealed the existence in 29 of the countries it operates, of arrangements in which warrantless search and intrusion of intelligence staff in Telcos was a fact of life and business.

At this point the skeptical mind kicks in and one starts to look at Wangusi’s proposed contract through two lenses – Security and Dollars. Will it guarantee my security? I doubt it. As I will explain shortly, that part of the surveillance state’s claim of public good has already been captured by intelligence agencies, domestic and foreign which piously claim that I am daily prevented from harm by the warrantless data mining and recording that already goes on, most likely with the Communication Authority’s supine acquiescence and complete knowledge. Will it be a good use of my money? You must be joking! It is fairly obvious to the discerning that Kenyan taxpayers are being asked by Mr. Wangusi to pay a Lebanese company 2 million US dollars for absolutely no plausible beneficial reason.

Wangusi’s contract does not claim to be supported by any law, beyond the authority’s enabling statute. To his mind there are no constitutional issues at risk. He claims to have consulted the mobile network service providers (the Telco’s); whilst it is clear that he is unilaterally imposing a third party contractor on them against their will and advice to him. He even states that there is no need for public participation before he goes ahead. This guy needs to read our constitution. The constitution will show him that if he wants direct access to the Telcoms backbone and data centres then he needs a constitutional law to make this possible without arbitrarily invading the privacy of blameless Telco subscribers.

I have no idea and maybe even little interest in the bona fides of the contractor Wangusi’s fronting. In fact I know that what he is seeking is already being done, albeit illegally and by both Kenyan and foreign intelligence entities.

Edward Snowden revealed the American Mystic or Somalget programme which scoops up all Kenyan cellphone Metadata – i.e. who you call, text, send M-pesa to all day and all year long. In 2009, the UK’s, GCHQ, is known to have listened in to our former President Kibaki, Raila Odinga and even Chris Kirubi; proof I suppose that all are at risk of being spied upon. Only the snoopers or the willfully ignorant will claim to be unaware of the extent to which Kenyan authorities engage in domestic data harvesting exercises under the rubric of Counter Terrorism and Counter Narcotics law enforcement. On paper, Kenyan law requires such to be supported by court warrants, but we know that is not always the case.

Which is why I cannot figure out the necessity of Wangusi’s surplus intervention; unless there’s another motive. I can see it has rightly generated a groundswell of opposition, including sharp editorials and a court case or two, but I fear that we cannot see the forest for the trees. We are already under the constant eye of Big Brother, many of us extremely wittingly as we sign on to every mobile phone application known to man. What we think of positively as our national tendency towards quick uptake of technologies from abroad may actually be our Trojan horse (ever wondered why there are computer viruses called Trojans?).

But back to my main theses, follow the money. This apparently dumb idea may be a profitable one. I think that paying a firm 2 million US dollars to identify counterfeit phones is a complete waste of money by the Communication Authority which appears to have a mission creep approach towards its mandate. I would also hazard the opinion that the interest is more towards the 2 million dollar spend rather than an actual contribution to the arsenal of law enforcement tools. My point? What Wangusi wants done is already being done albeit surreptitiously and he knows this.

Mr. Wangusi is not even suggesting that he wants the National Assembly to legalise the surveillance he proposes. This is why Kenyans must not be swayed by his hysterical response to the media attention of last week. He knows that given enough time to consider the merits and demerits of his preferred procurement, Kenyans will say it is a complete waste of money and his time. The Telcos have already told him that they have the in-house capacity to detect bogus IMEI phones. The Kenya Anti Counterfeit Agency already has work in progress with phone manufacturers including Samsung. But since the motivation is rushed public procurement, which the communications authority is pushing as a matter of national urgency, Mr. Wangusi wants us to shut up and let him do what he wants with a third-party company from the Levant.

Nairobi, Kenya.

Bonface Nyangla,