PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE

THE NATIONAL INTELLIGENCE SERVICE ACT (ACT NO. 28 OF 2012)

The National Intelligence Service Act (Act No. 28 of 2012) (“NIS Act”) allows the Director-General of the National Intelligence Service (“NIS”) (pursuant to Section 36) to monitor or otherwise interfere with the privacy of a person’s communications.

Pursuant to Section 42 (1) and (2) of the NIS Act, where the Director-General has reasonable grounds to believe that a warrant under this section is required to enable the NIS to investigate any threat to national security or to perform any of its functions, he or she may apply for a warrant. Section 42 (2) of the NIS Act provides that such a warrant shall be ex-parte before a judge of the High Court of Kenya.

The Director-General of the NIS can apply for a warrant (issued by the High Court of Kenya pursuant to Section 36 of the NIS Act) that enables investigations of a person’s private communications. Further, Section 44 of the NIS Act allows the Director-General of the NIS to request the courts to direct the appropriate persons to furnish such information, facilities or technical assistance as necessary to execute the warrant.

Section 45 of the NIS Act provides that, a warrant issued under the Act may authorise any member of the NIS to obtain any information, material, record, document or thing and for that purpose:

  • to enter any place, or obtain access to anything;
  • to search for or remove or return, examine, take extracts from, make copies of or record in any other manner the information, material, record, document or things;
  • to monitor communication; or
  • to install, maintain or remove anything.

THE PREVENTION OF TERRORISM ACT (ACT NO. 30 OF 2012)

Section 36 (1) and (2) of The Prevention of Terrorism Act (Act No. 30 of 2012) (the “PT Act”) allows a police officer (subject to consent from the Inspector-General or the Director of Public Prosecutions) to apply for an interception of communications order.

Section 36 (3) of the PT Act allows for the issuance of an interception order that requires a communications service provider to intercept and retain specified communication of a specified description received or transmitted or about to be received or transmitted by the communications service provider or authorising a police officer to enter any premises and to install on such premises, any device for the interception and retention of a specified communication and to remove and retain such device.

THE MUTUAL LEGAL ASSISTANCE ACT (CAP. 75A LAWS OF KENYA)

Pursuant to The Mutual Legal Assistance Act (Cap. 75A Laws of Kenya) (the “MLA Act”) a requesting state may make a request to Kenya requesting for the interception and immediate transmission of telecommunications or the interception, recording and subsequent transmission of telecommunications. Under section 27 of the MLA Act, for the purpose of a criminal investigation, Kenya may, in accordance with the provisions of this Act and any other relevant law, execute a request from a requesting state for the interception and immediate transmission of telecommunications or the interception, recording and subsequent transmission of telecommunications.

Section 32 (1) of the MLA Act provides that a request may be made to Kenya from a requesting state for deployment of covert electronic surveillance.

KENYA INFORMATION AND COMMUNICATIONS ACT (CAP. 411A, LAWS OF KENYA)

The statutes mentioned above should be considered in the context of Section 31 of the Kenya Information and Communications Act (Cap. 411A, Laws of Kenya) ( the “KIC Act “) which makes it an offence punishable by conviction with a fine not exceeding three hundred thousand shillings, or imprisonment for a term not exceeding three years, or to both where a licensed telecommunication operator who otherwise than in the course of his business:

  • intercepts a message sent through a licensed telecommunication system; or
  • discloses to any person the contents of a message intercepted; or
  • discloses to any person the contents of any statement or account specifying the telecommunication services.

Section 93 of the KIC Act has the effect of obliging a person licensed to provide telecommunication services to disclose information (interception being a mode of disclosure) where such disclosure facilitates the statutory functions of the Commission or is in connection with the investigation of a criminal offence or to facilitate criminal proceedings or for the purposes of any civil proceedings brought by virtue or/under the KIC Act.

KENYA INFORMATION AND COMMUNICATIONS (CONSUMER PROTECTION) REGULATIONS, 2010

Further, Regulation 15 (1) of the Kenya Information and Communications (Consumer Protection) Regulations, 2010 require that, subject to the provisions of the KIC Act or any other written law, a licensee (licensed under the KIC Act) shall not monitor, disclose or allow any person to monitor or disclose, the content of any information of any subscriber transmitted through the licensed system by listening, tapping, storage, or other kinds of interception or surveillance of communications and related data.

Section 31 of the KIC Act and Regulation 15 (1) of the Kenya Information and Communications (Consumer Protection) Regulations, 2010 are however qualified by Section 93 of the KIC Act which allows for disclosure of information where such disclosure facilitates the statutory functions of the Commission or is in connection with the investigation of a criminal offence or to facilitate criminal proceedings or for the purposes of any civil proceedings brought by virtue of/under the KIC Act.

DISCLOSURE OF COMMUNICATIONS DATA

KENYA INFORMATION AND COMMUNICATIONS ACT (CAP. 411A, LAWS OF KENYA) (“KIC ACT”)

Section 89 (1) of the KIC Act provides the power to enter and search premises, and extends to obtaining any article or thing. These powers extend to obtaining data related to customer communications. A court is permitted to grant a search warrant to enable entry of any premises and to search, examine, test any station or apparatus or obtain any article or thing.

THE NATIONAL INTELLIGENCE SERVICE ACT (ACT NO. 28 OF 2012) (“NIS ACT”)

Section 44 of the NIS Act allows the Director-General of the NIS to request the courts to direct the appropriate persons to furnish such information, facilities or technical assistance as necessary to execute the warrant. Section 45 of the NIS Act provides that a warrant issued under the Act may authorise any member of the NIS to obtain any information, material, record, document or thing.

THE MUTUAL LEGAL ASSISTANCE ACT (CAP. 75A LAWS OF KENYA) (“MLA ACT”)

Section 28 of the MLA Act allows a requesting state to make a request for legal assistance in accordance with Kenyan law for the provision of data relating to customer communications.

THE ANTI-MONEY LAUNDERING ACT (CAP 59B)

Section 103 of the Proceeds of Crime and Anti-money laundering Act (Cap.59 B) authorises the police to apply for production orders where a person has been charged with or convicted of an offence, and a police officer has reasonable grounds for suspecting that any person has possession or control of: (a) a document relevant to identifying, locating or quantifying property of the person, or to identifying or locating a document necessary for the transfer of property of such person; or (b) a document relevant to the identifying, locating or quantifying tainted property in relation to the offence, or to identifying or locating a document necessary for the transfer of tainted property in relation to the offence. The police officer may make an ex parte application with a supporting affidavit to a court for an order against the person suspected of having possession or control of a document of the kind referred to, to produce it.

NATIONAL SECURITY AND EMERGENCY POWERS

THE NATIONAL INTELLIGENCE SERVICE ACT (ACT NO. 28 OF 2012) (“NIS ACT”)

As described above, pursuant to section 42 (1) and (2) of the NIS Act where the Director-General has reasonable grounds to believe that a warrant under this section is required to enable the NIS to investigate any threat to national security or to perform any of its functions, he or she may apply for a warrant before a Judge of the High Court of Kenya (under section 36) to monitor or otherwise interfere with the privacy of a person’s communications to enable investigation of any threat to national security.

THE CONSTITUTION OF KENYA 2010

Under Article 58 and 132(4) of the Constitution, the President may declare a state of emergency and any legislation enacted or other action taken in consequence of the declaration shall be effective only prospectively and not longer than fourteen days from the date of declaration, unless the National Assembly resolves to extend the declaration. After declaration of a state of emergency, the government would have broad powers, which could extend to a range of actions in relation to Vodafone’s network and/or customer communications.

OVERSIGHT OF THE USE OF POWERS

The role of the judiciary pursuant to the NIS Act is limited to issuing the warrant and any subsequent judicial orders (related to the warrant). However pursuant to Section 45 of the NIS Act, in extreme cases of emergency, the Director-General may exercise the powers under the NIS Act without a warrant provided that he applies for a warrant within thirty six hours after exercising any of the powers under the NIS Act.

Further, Section 65 of the NIS Act provides that the Parliament of Kenya (through the relevant committee) has oversight authority over all the workings of the NIS pursuant to Article 238 (2) of the Constitution of Kenya (2010).

Regarding powers granted to the president in a state of emergency, pursuant to Article 58(5) of the Constitution of Kenya, the Supreme Court may decide on the validity of a declaration of a state of emergency, any extension of declaration of a state of emergency and any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.

CENSORSHIP RELATED POWERS

SHUT-DOWN OF NETWORK AND SERVICES

CONSTITUTION

There is no clear legislation on this issue. Pursuant to Article 58 and Article 132(4) of the Constitution of Kenya, the President may declare a state of emergency. After a declaration of a state of emergency, the government has broad powers. It is feasible that such powers could extend to ordering the shut-down of Vodafone’s network and/or certain of its services. Any action or legislation taken in consequence of a declaration of a state of emergency is effective for no longer than 14 days from the date of declaration, unless the National Assembly resolves to extend the declaration.

In a recent case Royal Media Services Limited vs. The Hon. Attorney General, The Minister of Information and Broadcasting and the Communications Commission of Kenya [Petition No. 59 of 2013 High Court of Kenya], the petitioners (a broadcasting station called Royal Media Services Limited) had its transmitters disabled and shut down by the government.

THE KENYA INFORMATION AND COMMUNICATIONS (REGISTRATION OF SUBSCRIBERS OF TELECOMMUNICATION SERVICES) REGULATIONS 2012

Under Regulations 11 and 12 of The Kenya Information and Communications (Registration of Subscribers of Telecommunication Services) Regulations 2012 telecommunication services must be suspended with respect to a subscriber who fails to register his details. Upon expiry of the 90 day suspension period, the subscriber’s individual access to the telecommunication service is deactivated.

BLOCKING OF URLS & IP ADDRESSES

CONSTITUTION

Please see ‘Shut-down of network and services’ above. It is plausible that, were a state of emergency to be declared by the President, the government might use its emergency powers to order Vodafone to block specified URLs, IP addresses or IP ranges.

POWER TO TAKE CONTROL OF VODAFONE’S NETWORK

CONSTITUTION

Please see ‘Shut-down of network and services’ above. It is plausible that, were a state of emergency to be declared by the President, the government might use its emergency powers to take control of Vodafone’s network.

OVERSIGHT OF THE USE OF POWERS

CONSTITUTION

Under Article 58(5) of the Constitution of Kenya, the Supreme court may decide whether a declaration of a state of emergency is valid. The Supreme court may also preside over whether the extension of a declaration of a state of emergency beyond 14 days and any legislation enacted in consequence of a declaration of a state of emergency is valid.

This information was originally published in the Legal Annexe to the Vodafone Group Law Enforcement Disclosure Report in June of 2014, which was updated in February of 2015.

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