Legal gaps exposed in Safaricom row with internet call companies

Safaricom PLC headquarters in Westlands, Nairobi. FILE PHOTO | DENNIS ONSONGO | NMG    

By LYNET IGADWAH More by this Author

The prolonged dispute pitting mobile network operators (MNO) against Internet-based telcos has highlighted legal gaps in the

identification of subscribers in compliance with registration requirements in a digital setting.

The law requires that subscribers to telecommunication services licensed by the Communications Authority of Kenya (CA) physically present themselves to the provider, or its agent for registration.

Voice over Internet Protocol (VoIP) service providers operating in Kenya such as Geonet and Elige the owners of the Ambia calling platform however argue this requirement has long been overtaken by technological advancements.

High Court judge David Majanja in a judgment issued on March 17, 2023, noted that the fact that VoIP services do not use SIM cards did not exclude them from the framework of the Act and regulations.

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“I agree with the (CAMAT) tribunal that if at all a regulation has been overtaken by a technological advancement, then the appropriate recourse is to amend and or repeal the Act or Regulation,” he said.

CAMAT refers to the Communications and Multimedia Appeals Tribunal.

The SIM registration regulations prescribe a registration process, which includes personal appearance and the specific documents that must be presented during registration for verification by a human agent.

The Internet-based telcos onboard subscribers by issuing a one-time password (OTP) using a number from the operating network.

For instance, to be connected to the Elige network, a customer downloads the app on Google PlayStore or Apple Store on their phone, and then registers as they would for a sim card.

Upon successful registration, a subscriber gets a unique number bearing Elige prefixes including 02056, 02057, 02058 and 02059.

As a way of dealing with fraudulent subscriber registrations, Ambia has functionality that compares the face on someone’s identity card to a picture captured in real time.

Justice Majanja was referring to the February 2022 judgment by CAMAT that noted that the SIM Card Regulations should be adhered to.

“The said regulations whether they appear to have been overtaken by advances in technology or not remain in force until they are amended by the Cabinet secretary, repealed by Parliament or nullified by a superior higher court,” ruled CAMAT chairperson Rosemary Kuria.

The clash between mobile operators and Internet-based telcos started in 2016 when Safaricom lodged a complaint with the CA against Geonet alleging illegal termination of international calls disguised as local calls.

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Barely a week later, Geonet complained to the regulator accusing Safaricom of interference with and interruption of its services by blocking calls.

In February 2017, Elige complained about the inclusion of a clause in the interconnection agreements with the mobile network operators (MNO) prohibiting the termination of international calls.

The Kenya Communications Regulations 2001 define an international call as “an effective or completed telephone call exchanged with a communication station outside the country in which the calling telecommunication station is situated.

CAMAT, therefore, ruled that MNOs cannot continue blocking VoIL subscribers on the pretext that their customers are outside the country.

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