The Chief Of Staff in the Office of The President recently tweeted that the debate on data protection in Kenya is an academic debate (https://twitter.com/NziokaWaita/status/1120998466753310721). The tweet states –

‘I hear you but… ask yourself this , where is your current identifier Information held & what law protects it ? The data protection debate is great but largely academic in our context . Let’s work together as Kenyans to register & also contribute to the data protection bill.’

To unpack his tweet, he seems to indicate that current data held by the State is really not protected by any law so what is our problem??!!! What he seems to forget is that the right to privacy is a constitutional right in Kenya. Article 31 of the Constitution provides –

‘Every person has the right to privacy, which includes the right not to have—

(a) their person, home or property searched;

(b) their possessions seized;

(c) information relating to their family or private affairs unnecessarily required or revealed; or

(d) the privacy of their communications infringed.’

The import of his message is that at the moment data may be collected, handled and stored in whatever manner the State wishes. This is a position that has been challenged in court; a number of constitutional petitions have been filed against ‘Huduma number’. Key issues for determination in the petitions include the constitutionality of ‘Huduma number’, the constitutional relevance of the right to privacy and the effect of not having laws on data protection and privacy.

Evidence in the public domain indicates that personal data held by the state is up for grabs, easily shared and traded by nefarious characters. The State wishes to operate in an environment that lacks transparency, accountability and respect for fundamental rights and freedoms where personal data is concerned. The State wants to have a free hand in undertaking surveillance and handling data personal data. This is the same State that engaged Cambridge Analytica to mine and use Facebook data to skew opinion on the 2017 elections in Kenya.

The State is in bed with commercial interests that are undertaking surveillance capitalism. Prof. Shoshana Zuboff defines surveillance capitalism …as the unilateral claiming of private human experience as free raw material for translation into behavioral data. These data are then computed and packaged as prediction products and sold into behavioral futures markets — business customers with a commercial interest in knowing what we will do now, soon, and later….’. Another definition states that surveillance capitalism is the monetization of data captured through monitoring people’s movements and behaviors online and in the physical world. It is for this reason you find yourself a subject of unsolicited marketing, promotions and subliminal messaging aimed at swaying your financial, political and social habits.

The State and commercial interests have been at the forefront in torpedoing any proposed data protection Bill that has existed since the promulgation of the Constitution of Kenya 2010. It is said data is the new oil or the new bacon. All these political and commercial interests want to trade in personal data in an unregulated environment, where they cannot be taken to task on what kind of data they collect, use, store and trade in. They do not want to be held accountable for the negative effects their actions cause on individuals.

At the end of 2018 there were two Bills, one at the Senate and another drafted by the ICT Ministry. It remains unclear what the fate of the two Bills is. For over seven years Kenyans have been contributing to data protection Bills. Calling on Kenyans to continue contributing to these Bills is insincere. The State already has tonnes of views and material required to harmonise, finalise and have the Bills debated in Parliament. What is this further contribution the State seeks? What version of the Bills is the State considering? Why hasn’t the State published a revised Bill following public consultations last year? Why does the State fear data privacy and protection laws?

Debate and advocacy on data protection laws is not academic. Countries around the world are coming up with laws to regulate how data is collected, stored, used and shared. The European Union came up with a standard for all its member states. Unfortunately Kenyan State operatives do not look at the bigger picture, they believe the data in discussion is data from the public and they are not part of that public. The reality is that each and every Kenya is susceptible to having their data being in the hands of crooks and used for odious purposes.

Coupled with weak cyber protection laws, lack of data protection regulation exposes all Kenyans to the machinations of criminals.