Court declares mobile numbers as protected digital identity

The High Court of Kenya has delivered a landmark ruling declaring that a mobile phone number constitutes a form of digital identity, warning that its deactivation and reassignment without safeguards threatens the constitutional right to privacy.

Effectively, telecommunication service providers, notably Safaricom PLC, Airtel and Telkom Kenya are not at liberty to reassign phone numbers unless with express authority of the holder.

In a judgment by High Court judge Justice Lawrence Mugambi, the court held that a registered mobile number is closely tied to an individual’s personal data and therefore deserves protection under Article 31 of the Constitution, which guarantees the right to privacy.

Justice Mugambi noted that mobile numbers are not merely communication tools but digital identifiers linked to sensitive personal information, including financial and family data.

He warned that the common practice of recycling inactive SIM cards—often after prolonged inactivity—could expose such information to third parties if proper safeguards are not in place.

“To answer the question as to whether a person’s registered phone number constitutes digital identity, the finding of this Court is in the affirmative,” the judge ruled.

The court found that when a SIM card is deactivated and reassigned without notifying the original owner or investigating the reasons for inactivity, it creates a risk of unauthorized disclosure of personal data. This, the court said, amounts to a violation of the right to privacy.

As part of the ruling, the court directed Dorcas Oduor, in collaboration with key state agencies including the Office of the Data Protection Commissioner and the Communications Authority of Kenya, to develop measures to safeguard digital identities linked to mobile numbers. The agencies have been given six months to implement the directives.

Among the measures ordered is the requirement that mobile service providers notify subscribers before deactivating their lines. Where the subscriber cannot be reached, the court directed that a public notice be issued following a documented verification process to confirm that the original owner cannot be traced or has relinquished their rights to the number.

The court also called for the introduction of technical safeguards to prevent the transfer or exposure of personal data when a number is reassigned.

The ruling arose from a petition filed by Erastus Ngura Odhiambo, a prisoner who challenged the deactivation of his mobile line due to prolonged inactivity during his incarceration.

Odhiambo argued that prisoners are particularly vulnerable to losing their digital identity because they are unable to use their mobile lines while in custody. He warned that reassignment of such numbers could expose their private information to new users without their consent.

The court agreed, emphasizing that imprisonment does not strip individuals of their fundamental rights except where such rights are incompatible with incarceration.

“Imprisonment should not translate to extinction of a prisoner’s digital identity,” Justice Mugambi stated, adding that prisoners remain entitled to privacy protections under the Constitution.

The judge found no justification for automatically deactivating or reallocating prisoners’ mobile numbers, noting that there was no evidence that preserving such digital identity is incompatible with incarceration.

Consequently, the court directed the Attorney General, working with the Kenya Prisons Service and other relevant bodies, to develop and gazette regulations to protect the mobile-based digital identities of prisoners. These regulations are expected to include mechanisms for notifying mobile network operators when an individual is incarcerated, ensuring their number is preserved until the completion of their sentence.

The court further ordered that, if the directives are not implemented within six months, the reassignment or recycling of deactivated mobile numbers must cease automatically to protect constitutional rights.

However, the court clarified that restrictions on prisoners’ access to mobile phones while in custody remain lawful and are not unconstitutional.

The ruling sets a significant precedent in Kenya’s evolving digital rights landscape, affirming that mobile numbers are integral to personal identity in the digital age and must be protected accordingly.