, NAIROBI, Kenya, May 7 – The National Cohesion and Integration Commission (NCIC) ought to have obtained a court order granting it the authority to snoop into people\’s SMSs for hate speech, a law expert has said.
Nairobi lawyer Evans Monari has noted that it is illegal for the NCIC to monitor text messages without consent as it is an infringement on the right to privacy.
He added that the High Court was the only institution that could determine a situation that called for the violation of fundamental human rights, as spelt out in article 20 of the new constitution.
"The fundamental rights are tweaked in such a way that you need a court order to get into people\’s e-mails, SMSs and telephones and this is also provided for and given a working space within the Act that governs the Communication Commission of Kenya," he said.
Chapter 20, section 3, of the Bill of rights states that a court shall develop the law to the extent that it does not give effect to a right or fundamental freedom and adopt the interpretation that most favors the enforcement of a right or fundamental freedom.
Mr Monari further noted that the CCK Act set out the modalities under which a person\’s right to privacy could be breached.
"You cannot unilaterally as a commission hack into people\’s e-mails and SMSs; it is against the law unless they (NCIC) privately obtained a court order which I doubt," he said.
He also accused the commission of overstepping its mandate saying it should not be overly concerned with threats to national security.
The commission on Thursday revealed that it had been monitoring Kenyans\’ SMSs for hate speech over the past one year, arguing that the vice was a threat to national security.
It could however not give any details into the revelation but maintained that it would share its findings in due time.
"The NCIC has fundamentally deviated from the reasons why it was set up. It has left a gap in terms of going towards 2012 because it needs to figure out how we shall have national integration, cohesion and tribal harmony; that is the reason why it was set up," said Mr Monari.
"It cannot now start dealing with minion issues like SMs and e-mails. It is not their work to deal with national security," he said.
The admission by the integration commission sparked debate across some sections of the public with some stating that the move was illegal. Others however argued that the NCIC was justified in monitoring hateful speech.
Mr Monari however said that some aspects of human rights should be limited in order to retain order.
"The constitution does not permit hate speech; meaning that even if you have the full right of expression we cannot allow hate speech in our testimonies, writings, views and anything that we express ourselves to," he said.
NCIC Chairman Dr Mzalendo Kibunjia did not return our calls to give his side of the story.
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