Court bars Kenyan telcos from recycling phone numbers without owners’ consent

A Kenyan High Court has ruled that telecom operators (telcos) must notify and get consent from a user before recycling his/her phone number. The ruling is a response to a petition filed in 2024, which challenged the unauthorised recycling of phone numbers by telcos. 

The High Court, in its declaration on Thursday, ruled that a registered mobile phone number constitutes a digital identifier linking personal data that relates to an individual’s private affairs.  

The court added that mobile numbers are personal data protected under Articles 31(c) & (d) of the Kenyan Constitution.

While the issue centred on the risks of SIM recycling, it also raised concerns about the risks associated with the process when it’s not properly purged, leading to the exposure of sensitive data and financial loss. 

In its ruling, the court has directed that cell phone numbers be reassigned only after the previous registered owner is informed and consents to the process.

In cases where the registered owner is unable to be reached through official publication, alternative methods and when other necessary measures have been exhausted, only then can a telco recycle such phone numbers. 

When such a number has been reassigned to another user, the court directs telcos to implement technical safeguards to prevent unauthorised exposure or transfer of personal data to the new user or another party. 

In addition to telcos’ role in the SIM recycling process, the court also directed the Office of the Attorney General to implement digital identity protection measures across the country. 

“The High Court has now given the Office of the Attorney General 6 months to take all necessary and appropriate measures to safeguard digital identity associated with the registered mobile telephone number against unfettered deactivation, and subsequent arbitrary reassignment or recycling,” it said.

Kenyans on X welcomed the ruling, citing how telcos such as Safaricom have unauthoritatively reassigned their phone numbers after periods of non-use. 

Others pointed out how they receive strange messages on a newly acquired phone number, signalling gaps in the SIM reassignment process. 

The Petition: What really happened

The Kenyan High Court’s declaration follows a petition made on 10 June 2024 by Erastus Ngura Odhiambo, which challenged the reassignment of phone numbers to another owing to a period of inactivity. 

First, the petition challenged the recycling of phone numbers without prior notice to the user. Second, it claimed the reassignment process has a gap in which an individual’s digital identity is being transferred to another user, thereby constituting a risk.

Specifically, the petition highlighted how prisoners’ phone numbers and information had been transferred and leaked to another party owing to periods of inactivity while they were incarcerated. Through which their digital identity is obtained and becomes the property of a third party.

Among the numerous requests, the petition sought a judgment that a person’s digital identity and phone number form part of his/her digital identity just like a national ID Card, a passport, or a driver’s license.

It also requested a declaration that prisoners have the right to maintain their digital identity and phone number during their period of incarceration. 

To prevent the clause of inactive/non-use period from overruling liberty to protect phone numbers, the petition sought a ruling that prisoners can use their phone numbers while serving their jail terms.

The court, in its ruling on Thursday, before Justice Lawrence N. Mugambi, mandated the Kenyan Prison Service to allow prisoners to have access to their phone numbers while serving their jail terms. 

It noted that disapproval is a limitation to the right to privacy, and communication under Articles 31 and 33, respectively. 

It also ruled that a registered phone number now constitutes a person’s digital identity and privacy, which telcos must properly safeguard.

The ruling signifies a great win for telecom subscribers and prisoners, where ownership of phone numbers and protection of digital identity are now constitutionally backed. 

Also Read: Your new SIM could be someone else’s old number: Inside Nigeria’s risky SIM recycling system.

Examples from Nigeria 

In light of issues relating to SIM recycling, such incidents exist in Nigeria, where phone numbers are being transferred after a period of inactivity. 

While the recycling process is regulatory-backed by the Nigerian Communications Commission (NCC) and economically backed for telcos, concerns arise from how SIM recycling processes are now properly cleaned, leading to identity and financial risk. 

The issues took a significant turn after the NCC recently ruled that telcos must now inform users through email or alternative means before recycling. Also, mobile numbers become eligible for recycling after 360 days of inactivity.

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