An application by Paradigm Initiative (PIN) to participate in a data protection case against X Corp (formerly Twitter) as an Amicus Curiae (Friend of the Court) has been dismissed by the High Court in Nairobi.
In the case before the court, the petitioner, Felix Kibet, sued X Corp, the Attorney General, the Communication Authority of Kenya, the Kenya Film Classification Board, the National Cohesion & Integration Commission and the Office of the Data Protection Commissioner seeking orders to compel X Corp to delete all Kenyan accounts using aliases or unofficial names, prohibit and remove content deemed pornographic, lewd, hateful, or disrespectful, and require the government to ensure that social media platforms are safe and constitutionally compliant.
While seeking to be an amicus curiae (friend of the court), PIN indicated that the petition was raising issues of digital rights and digital anonymity, which are relatively new in Kenya, and that the court may necessarily have to draw interpretative inspiration from other jurisdictions.
Paradigm Initiative also argued that it has extensive experience in digital rights and digital anonymity and was therefore in a unique position to assist the court by providing impartial and enriching submissions on the issues. It argued that the petition before the court was of public interest raising questions on the interpretation and application of constitutional provisions on freedom of expression and the right to privacy in the digital age, and corresponding obligations under international law.
While seeking to be admitted as an amicus curiae, PIN had indicated it would address two issues: anonymity of digital users vis-à-vis the right to freedom of expression and the right to privacy and the international and domestic legal framework.
While opposing their inclusion in the case as an amicus curiae, the petitioner, Felix Koskei and the Communication Authority of Kenya argued that the Brief had taken partisan positions.
In Trusted Society of Human Rights Alliance-v-Mumo Matemo & 5 Others, the Supreme Court formulated the guidelines on the role of an Amicus Curiae as being: the Brief is to be limited to legal arguments, the Brief should be neutral, the Brief should have fidelity to the law, the Brief should be novel and stay away from legal points already raised and it should bring in a new expert perspective.
The court ruled that while undoubtedly PIN had the requisite expertise to serve as a friend of the Court, it was inclined to agree with the petitioner and the 3rd respondent that the Brief can be reasonably interpreted as advocating one side over another in the present case, admittedly either without it expressly doing so or seeking to do so.”
The organisation (PIN), the court stated, has in a published report titled ‘Devolved Impunity-The State of Safety and Security of Bloggers in Kenya’ taken a view that touches on one side’s possible view of matters at issue in the petition before the court, and it cannot be said that PIN would be viewed as non-partisan. PIN’s case was dismissed on the ground of being viewed as non-partisan.
“For those reasons, the application has failed the Supreme Court’s test in Trust Society as there is a reasonable perception of partisanship in the Brief or the nature of the applicant that can be ascribed to the applicant’s intention to join as an Amicus Curiae; and also based on its prior and ongoing role within commentary on digital freedom and the state of freedom of expression in Kenya and Africa as a whole,” the judge added
