Lawyer Stephen Kiptinness, representing Safaricom addresses the court on
July 6, 2016 during the hearing of a case seeking to compel it to
release customer information. PHOTO | PAUL WAWERU
By VINCENT AGOYA, vagoya@ke.nationmedia.com
In Summary
- LSK accuses the telco of suppressing potential evidence and wants it compelled “to change its stance from a passive spectator to an active player in assisting with the investigations.”
- The lawyers' lobby says call and message data in Safaricom’s custody “should show the planning and execution” of the murders.
- Safaricom has, however, invoked sections of the law and consumer protection regulations which prohibit it from divulging such information to third parties.
Safaricom
is unwilling to share phone data that may help convict the killers of
human rights lawyer Willie Kimani, his client and their driver, a trial
court was told Wednesday.
Lawyers accuse the telco of suppressing potential evidence
and want it compelled “to change its stance from a passive spectator to
an active player in assisting with the investigations.”
The Law Society of Kenya (LSK) Wednesday said call
and message data in Safaricom’s custody “should show the planning and
execution” of the murders.
Safaricom through its lawyer Stephen Kiptinness
invoked sections of the law and consumer protection regulations which
prohibit it from divulging such information to third parties.
Mr Kiptinness told the court that Safaricom risked having its licence revoked if the lawyers have their way.
The National Police Service has long been accused
of condoning extrajudicial killings by its officers and the lawyers
filed a civil case to hold the top brass responsible and have the telco
compelled to release the information to enable speedy investigation and
prosecution of the case.
The bodies of Mr Kimani, his client Josephat
Mwendwa and taxi driver Joseph Muiruri were found last week. The three
disappeared after a court hearing on June 23 at Mavoko Law Courts.
Four officers were arrested in connection with the
deaths and they are said to have tortured and killed the victims,
stashed their bodies in gunny bags and dumped them in Ol Donyo Sabuk
River, Machakos County.
“There must have been some flow of information and
the respondent (Safaricom) holds this evidence,” said LSK Nairobi
branch chairman Charles Kanjama.
Mr Kanjama and Mr Kirimi Guantai, also representing
LSK, told Justice Luka Kimaru that the company had “deliberately
omitted” data transcripts in a schedule they had requested for certain
subscribers between May and June.
“We notice that some information was not supplied
including content that was very important to these proceedings, which
renders it incapable of analysis” Mr Guantai submitted.
The LSK had requested Safaricom to provide details
of specific SIM card numbers, specifically the names of the subscribers,
but the lawyers said a printout given did not include the names of
owners as they had requested.
“We had also requested for message logs of the
numbers provided in the schedule, but they are telling us that they do
not keep a store of message logs,” the lawyer said.
They said they were reading mischief in Safaricom’s
response to their request “as the law provides that message logs be
stored for a period of five years.
Initially, Safaricom had requested Justice Kimaru to
de-link it from the proceedings but the judge declined stating that it
had a role to play in the ongoing investigations.
The lawyers said that Safaricom gave printouts showing where
certain calls originated from, but the same documents did not show
where the calls went.
They said LSK had requested for data of the phones in question up to July 1, but Safaricom only provided a list up to June 26.
In addition, the lawyers also wanted the telco to
assist in locating the cell phone owners who were in close proximity
with the vehicle the murder victims used on July 23 between 8am and 4pm.
LSK lawyers accused Safaricom of taking an evasive
approach by only fishing information from a principal data base without
making any analysis or using necessary data tools to generate
information useful to the probe.
“They did not co-relate telephone numbers from
those receiving text messages and calls from the people in question
including their names and identification numbers,” Mr Kajama said.
The lawyer said that they had realised from
previous investigations that “there has been a failure to employ all
forensic tools to build a strong case to tie suspects to a crime
especially where telephone service providers were concerned.”
“Telecommunication providers adopt a more than a mere passive approach to the supply of information,” the lawyer submitted.
Proceedings resume on Tuesday next week.
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