kenya
Data Privacy and Security

Kenya: The Internet & Freedom of Information

The name ‘Edward Snowden’ has become familiar with many people. His revelations about the lengths to which government intelligence agencies in the US and UK have gone to in order to gather information about people’s actions online came as a shock to many. Some have since come to regard him as a hero, whereas others consider him a traitor to his nation. Whichever position you might take on the nature of his actions and whether they are justifiable or not, one thing's for sure - we live in a world where digital technologies and the internet in particular present significant challenges to our privacy as individuals and our freedoms of information and expression. Ironically, the same technologies that are creating unprecedented means for ordinary citizens to create and share information, sometimes leading to such dramatic outcomes as the Arab Spring, are the same ones used to undermine these cherished freedoms.

Snowden’s revelation of PRISM and other NSA programs may be the latest to shock us into the reality of which we live, a reality that many are or have previously been oblivious to, but they are by no means the first to test these waters. Big internet companies such as Facebook and Google have come into the spotlight time and again, drawing fierce criticism about the manner in which they use data their users put on their systems.

When Google introduced contextual ads within GMail, there was outcry over whether Google had a right to ‘read’ your email in order to generate targeted ads, that issue has become a recurrent one. A recent claim by Google about privacy expectations raised some eyebrows and while the outrage may not be all valid, it does point to increasing concerns about online privacy and what these internet companies can and cannot do with your data legally when you entrust it to them.  Facebook on the other hand has faced significant challenges with its privacy settings, and features that were deemed to infringe on the privacy of individuals. Lately, Facebook’s new offering, Facebook Home, is raising some eyebrows about the company’s increasing reach into user’s privacy. (As a thought experiment: try to think how Google Glasses and other such advances will push the envelope further. Essentially, moving from the ‘internet’ itself to the ‘The Internet of Things’ will make these issues pervasive in society, not just when you’re behind a screen.)

These events may seem far off and unrelated to local ongoings, but the fact of the matter is that, while the internet may not be as pervasive locally as it is in the western world, it is fast diffusing into society aided by the pervasiveness of mobile telephony and the diffusion of connected devices. The issues of online privacy and freedom of information will therefore only become more and more relevant with time. Already, questions have been raised about the use of online platforms, particularly social networking to propagate hate speech. In addition, there are also some unique circumstances in Kenya with regards to data privacy such as Kenya’s tax authority seeking to mine mobile money transaction data - big data is closer home than you might think.

The Constitution of Kenya, 2010 was a milestone in enshrining the right to access/freedom of information in the constitution, the previous constitution did not make this provision. The 2010 Constitution explicitly denotes citizens’ right to access information in Article 35:

Access to information

35. (1) Every citizen has the right of access to —

(a) information held by the State; and

(b) information held by another person and required for the

exercise or protection of any right or fundamental

freedom.

(2) Every person has the right to the correction or deletion of

untrue or misleading information that affects the person.

 (3) The State shall publish and publicise any important

information affecting the nation.

Furthermore, Article 33

(1) Every person has the right to freedom of expression, which includes -

(a) freedom to seek, receive or impart information or ideas;

In accordance to the constitutional provision, there are currently two bills that have been proposed to create relevant legislation: the 2012 Freedom of Information and Data Protection Bills. Both bills are at different stages in the constitutional implementation process but are clearly landmark legislations that come at a time when the country is increasingly becoming exposed to the world of information and communications through cell-phones and the internet.

There are however, challenges in the enactment of these pieces of legislation that call for all stakeholders to be alert and to make sure that the right kind of laws are passed. For example, the wording of the constitutional provision can lead to challenges of interpretation. Take the outcome of a 2012 case that touches on the right to access of information: a paper titled ‘The Emerging Jurisprudence on the Right to Access of Information’ by Khaseke Makadia Georgiadis analysing the outcome of this case, reveals certain challenges with the interpretation of the constitution with regards to this article.

In the case, the petitioner was denied their attempt to access certain information regarding a public tender which the petitioner had taken part and in which they had come to suspect wrongdoing in the procurement process, alleging that certain fundamental rights and freedoms had been breached in the process. The court ruled against the petitioner. Mr. Georgiadis raises the following concerns in his paper:

  1. The interpretation of Article 35 with respect to foreign persons: The article specifies: ‘Every citizen has the right to…’
  2. The interpretation of the with regard to corporations or corporate persons: Article 33 recognizes ‘Every person has the right to...’

It is widely held that the freedoms of information and expression are cornerstone human rights, critical to the proper functioning of democratic states. It is thus imperative that Kenya gets it right with these laws to ward off the challenges that come with the progressive opening up of society influenced by information technology.

 NOTE: Here’s a great analysis of the Freedom of Information Bill, 2012.

 

Will Mutua, co-founder of The Open Academy – Nairobi, (Twitter: @OpenAcademyNBO) social impact initiative that is seeking to provide solutions to higher and post-tertiary education in Kenya

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