Freedom of expression standards should guide the fight against "counterfeit" mobile phones, says ARTICLE 19
In a country where mobile phones have enabled Kenyans to, amongst other things, track the price of commodities, plan farming around the weather, or uncover corruption – successfully realising the rights to freedom of expression and information – such a denial of service would be manifestly disproportionate. ARTICLE 19 calls on the Commission to revise its decision.
In September 2011, Kenyan and international media reported that the Communications Commission of Kenya (CCK) – the regulatory body for the telecommunication, broadcasting and information technology industries - had considered ordering telecommunications service operators to deny services to "counterfeit" phones by a prescribed date.
Former CCK director, Charles Njoroge, had previously written to telecommunications service operators on 23 May 2011, ordering them to deny service to "counterfeit" handsets. The Kenyan media reported that President Kibaki had later directed all unregistered phone numbers to be denied service. In response to growing concerns about this order, the CCK organised consultative meetings with stakeholders – four mobile phone service providers (Safaricom, Airtel, Essar Telecom Kenya and Orange Telecom) and other Kenyan regulators (Anti-Counterfeit Agency, Kenya Bureau of Standards and National Security Intelligence Services) with a view to addressing any concerns.
On 14 September 2011, the CCK announced its plan to implement the order in two phases. In the first phase, as of 30 September 2011, the mobile phone service providers were required to deny activation of new SIM cards on "counterfeit" handsets. During the second phase, starting tentatively on 31 December 2011, the service providers would deny service to all other "counterfeit" handsets.
According to the CCK, these measures are undertaken for a variety of reasons. These include the protection of customers from allegedly substandard or stolen handsets, the protection of certain manufacturers from unlawful imitation of their products, or to fight crime perpetrated with the aid of mobile phones.
ARTICLE 19 took part in the stakeholders' meetings and advised the CCK and telecommunications operators about the need to guide the response to "counterfeit" or substandard handsets according to standards on the right to freedom of expression. Given the importance of mobile telephony for the free flow of information in Kenya, ARTICLE 19 argued that international standards on freedom of expression and information should be paramount in this issue.