Five Digital Rights Issues for Kenya in 2019
2019 promises to be a critical year for the digital space in Kenya. Below are some of the key legal issues that will be in focus:
1. The Data Protection Bill: this will by far be the most controversial discussion in the coming year. This year we had two Data Protection Bills up for discussion. One at the Senate and the other drafted by the ICT Ministry. The Ministry made promises to have the two Bills harmonized. However, this is yet to be done. I have always held the view that the political goodwill to come up with comprehensive data protection laws and regulations is lacking. Further, the private sector is more than glad to operate in a space that lacks data protection regulations. Individuals and corporation have unfettered freedom to collect, collate, analyse and trade in data generated in Kenya or by Kenyans.
2. The Computer Misuse and Cybercrimes Act, 2018: the Act was challenged in Court and 26 provisions remain suspended. My hope is that the Courts will declare the whole Act unconstitutional as it seeks to curtain the freedom of expression, press freedom, access to information and the right to due process. This said, we do require laws to deal with among others, cyberbullying, revenge pornography, child pornography and illegal access to digital content.
3. Illegal arrests and charges: in 2018 we have witnessed illegal arrests and charges brought against Kenyans on provisions of the law that had been declared unconstitutional. It is a shame that the Police still arrest and charge people on crimes such as criminal defamation, undermining the authority of a public officer and misuse of telecommunications devices.
4. Defamation in the digital space: I hope to see more civil suits against persons who defame others online. We require consistent jurisprudence on defamation without having a chilling effect on the right to freedom of expression.
5. Blockchain policies/laws: the Distributed Ledgers and Artificial Intelligence taskforce published a report that has really not been analysed and debated in the public domain. As the government seeks to digitise operations, it is crucial that we do have comprehensive laws regulating the use of blockchain technology in Kenya.
There are many year-long defamation cases ongoing, some of nuisance value, and it will be interesting to see a complete tally.
On data, senate bills stall in the national assembly, and that is likely to be the case again.
I think we should also expand the definition of “censorship” in the context of e-commerce, especially mobile money transfer services. The recent MPesa outage comes to mind. Think of a situation where Safaricom, or Government, wished to control what people could or could not pay for using mobile money transfer systems – say, Miguna Miguna’s book from an online store like Amazon or Wanuri Kahiu’s movie off of a service like Netflix. Censorship, in the context of speech, is easy to define and address. But in terms of the interconnectedness of the digital world, not so much. As a result, the pace at which certain digital rights are evolving, and Government’s and business’s responses to these rights, requires a new lexicon that applied only to the analogue world. Censorship, for me, is one that requires urgent intervention.