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Wednesday, August 4, 2021

Cops may soon spy on your phones in new proposed anti narcotics law

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The police may soon be spying on your telephone communication if they suspect you are a drug dealer should a proposed law be enacted.

The bill, which is sponsored by Kiambaa MP Paul Koinange, seeks to allow the police to enter premises and install phone tapping devices.

And, for purposes of obtaining evidence, a court may allow a police officer above the rank of chief inspector to execute such an operation.

Police, however, will be required to apply for written consent from the Director of Public Prosecutions before moving to court.

“The court shall make an order requiring a communications service provider to intercept and retain specified communication of a specified description received or transmitted, or about to be received or transmitted by that service provider,” the Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) Bill, 2020, states.

Koinange is the chairman of National Assembly’s Security Committee.

The bill provides that the courts can allow the police to cart away phones and other devices they believe are used to facilitate drug trade.

Courts will need to be satisfied that the information obtained may lead to the commission of an offence under the drugs law.

They will also consider if the information helps track the whereabouts of persons suspected of trafficking in drugs.

Any information contained in a communication intercepted in the country or legally in foreign jurisdictions will be admissible in court.

To guard against abuse, police officers who obtain information illegally will be jailed for 10 years or fined Sh10 million or both.

The narcotics law is being enhanced further to compel people with information on drug dealings to disclose such to a police officer. Failure to provide such information may earn such person five years in jail or Sh1 million fine or both.

The bill provides that no civil or criminal proceedings shall inhibit any person from disclosing any information—in good faith—that leads to preventing drug trade or securing the arrest or prosecution of drug dealers.

A person whose phone or any other communication device is seized and found to contain information that aids drug trade risks a Sh5 million fine or five years in jail.

The proposed law further seeks to enhance penalties related to drugs trade offences.

It seeks to provide that persons in possession of one to five grams of a narcotic drug be fined not less than Sh20 million and jailed for life.

A person in possession of less than one grams of narcotics will be fined Sh5 million or jailed five years or both.

Koinange proposes that those trafficking 101 grams or more be fined not less than Sh50 million or three times the market value and 20 years in jail.

The Bill states that a person in possession of between 51-100 grams will be fined not less than Sh30 million and 20 years’ jail term.

A person in possession of 0.1–5 grams will be fined Sh20 million or three times the market value or imprisoned for 15 years or both.

Having precursor chemicals weighing 50 grams will be a crime attracting not less than Sh20 million fine or a lifetime in jail.

The drugs law is being strengthened to provide for offences arising out of a conspiracy between Kenyans and foreigners.

Any citizen or foreigner who conspires to trade in narcotics – whether in Kenya or outside, will be considered to have committed the offence in the country.

It could be for these reasons that the government is keen on snooping on people’s private conversations, attempts now considered unconstitutional.

In June, the Law Society of Kenya moved to the Supreme Court to challenge a Court of Appeal order giving the Communications Authority of Kenya the nod to spy on phones.

The CA wants to install a Device Management System (DMS) on mobile networks to enable authorities to listen, track calls, SMSs, and mobile money transactions.

It argued that this was to help combat counterfeit and illegal devices by accessing phone numbers, their locations, and call records.

Activist Okiya Omtatah challenged the plan at the High Court, citing threats to privacy under the Constitution, violation of consumer rights and rights to fair administrative action.

The LSK says the privacy of Kenyans is threatened by the CA plan, issues which may apply to the latest bid by the National Assembly Security committee.

Those who use their premises—rented or owned—for purposes of drugs’ use will be fined Sh250,000 or five years in jail or both.

Those whose premises are used for purposes of manufacture, production and sale of narcotics risk Sh20 million fine or not less than 10 years jail time.

“A law enforcement officer who aids or abets narcotics trade by concealing or colluding with suspects shall be liable for a fine of not less than Sh20 million or imprisonment of not less than 20 years,” the proposed law reads.

The Star

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