|
Kenya’s Draft new Constitution and
its implications for ICT
|
 |
|
Written by Michael M. Murungi
|
|
After almost two decades of talk
about constitutional reforms in Kenya, the events of this year’s reform
calendar are so far the closest that the country has come to enacting a new
constitution. There is a lingering sense of optimism in the man and woman on
the street about what the new constitutional order will mean for Kenya – that
Kenya will become a better place.
Having read the Draft New
Constitution (February 23, 2010 version) I wondered what implications it
would have for Kenya’s burgeoning ICT industry; what the proposed framework
of government would mean for the ICT political leadership in the country and
what the provisions of the new constitution portend for these pertinent
issues in the information society: privacy and confidentiality; freedom of
expression; the right of access to public information; press freedom and
consumer rights and the place of ICT leadership in the organization of the
affairs of Government.
1. PRIVACY AND CONFIDENTIALITY Save as a broad constitutional norm encompassed in the freedom from unlawful entry into one’s premises, the search and seizure of one’s property and effects and freedom from interference with one’s correspondence, the right to privacy is not expressly legislated as a constitutional or statutory norm in Kenya. As a corollary, there is no express constitutional right to confidentiality and the protection of personal information. Kenyan practice on the right to privacy and confidentiality is guided largely by English Common law – a system of law which has developed from the judicial opinions of the English judiciary.
Perhaps the fullest expression
that the right to information privacy may be given in the information age is
the right to informational self determination, i.e., the right of the
individual to determine what information about himself should be communicated
to others and the circumstances under which that may be done, as was
enunciated by the German Federal Constitution Court in the 1983 case relating
to the country's population census.
Privacy and the current
Constitution of Kenya
The current Constitution provides
for the protection for the individual against “the search of his person or
property or the entry by others on his premises.” The right to individual
privacy not expressly legislated. However, section 79(1) which guarantees the
freedom of expression includes “freedom from interference with…
correspondence”.
Privacy and the Draft New
Constitution
In the Draft New Constitution,
Article 31 provides: “ Privacy: 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 on revealed; or d. the privacy of their communications infringed”. 2. FREEDOM OF EXPRESSION The freedom to express and receive information has not only been a defining value of the information society but is also hardwired into the architecture of the Internet - an open and collaborative platform where people freely and in most cases anonymously share information and ideas. Existing as well as emerging communications technologies have redefined the way regulatory authorities look at information censorship and thrown into redundancy traditional means of controlling the flow of information within and outside their national boundaries.
Freedom of Expression and the
current Constitution of Kenya
In the current Constitution,
freedom of expression is guaranteed under section 79(1). The right
encompasses “freedom to hold opinions without interference, freedom to
receive ideas and information without interference, freedom to communicate
ideas and information without interference (whether the communication be to
the public generally or to any person or class of persons) and freedom from
interference with his correspondence”.
Freedom of Expression and the
Draft New Constitution
Article 33(1) of the proposed new
Constitution:
“ Every person has the right to freedom of expression, which includes – a. freedom to seek, receive or impart information or ideas; b. freedom of artistic creativity; and c. academic freedom and freedom of scientific research (2) The right to freedom of expression does not extend to: a. propaganda for war; b. incitement to violence; c. hate speech or d. advocacy of hatred”.
PRESS FREEDOM
Press Freedom and the current Constitution of Kenya The current constitution does not bear any express reference to the ‘press’ or ‘the media’. This has often been interpreted by some observers to mean that press freedom is not recognized as a constitutional norm. Others have held the interpretation that press freedom is by necessary implication included in the constitutional guarantee protecting the freedom of expression and “the freedom to communicate ideas and information”.
However, even in the absence of an
express reference to the term ‘media’ or ‘press’, section 79 of the current
Constitution guarantees that “no person shall be hindered in the enjoyment of
his freedom of expression, that is to say, freedom to hold opinions without
interference, freedom to receive ideas and information without interference,
freedom to communicate ideas and information without interference (whether
the communication be to the public generally or to any person or class of
persons)”.
Press Freedom and the Draft New
Constitution
In the proposed Draft New
Constitution:
Article 34 provides: “(1) Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to [propaganda for war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm or is discriminatory]. (2). The state shall not – a. exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or b. penalise any person for any opinion or view or the content of any broadcast, publication or dissemination. (3). Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that – a. are necessary to regulate the airwaves and other forms of signal distribution; and b. are independent of control by government, political interests or commercial interests. (4). All state-owned media shall- a. be free to determine independently the editorial content of their broadcasts or communications; b. be impartial; c. afford fair opportunity for the presentation of divergent views and dissenting opinions; (5). Parliament shall enact legislation that provides for the establishment of a body, which shall- a. be independent of control by government, political interests or commercial interests; b. r reflect the interests of all sections of the society; c. s set media standards and regulate and monitor compliance with those standards.
This provision would effectively
divest the Communications Commission of Kenya (currently the converged
regulator for broadcasting, ICT, radio communications and postal services) of
all of its regulatory powers over the broadcasting industry. The provision
appears to be self-contradictory in two important respects: Firstly, if it is
the intention of subsection (3)(a) to leave CCK with the power to 'regulate
the airwaves and other forms of signal distribution", and CCK being by
definition a government entity under the administrative ambit of the Ministry
of Information and Communications, how is CCK not to be regarded as being
"independent of control of government" as provided in subsection
(3)(b)?
Secondly, if as is provided in
subsection (2) the state is not to interfere with any person engaged in
broadcasting or to penalize such person for the content of a broadcast, how
is that to be reconciled with the State's duty to enforce the constitutional
prohibition against the broadcasting of hate speech (subsection (1)) and
other violations of constitutional and statute law by broadcasters? In the
absence of an express statement in the draft new constitution making
subsection (2) subject to the provisions of subsection (1), this ambiguity
may result in a constitutional/legal impasse.
RIGHT OF ACCESS TO PUBLIC
INFORMATION
Information is the raw material
for the emerging knowledge economy. Public information, in particular, is
part of the common heritage of humanity. Maximising access to this
information promotes justice and the rule of law. It is therefore important
that organisations that have the right to publish public information and the
government bodies that create or control that information avail it to the
public in a form that is accurate, timely and accessible.
Access to public information and
the current Constitution of Kenya
Though the constitutionally
guaranteed freedom of expression includes the right to “receive ideas and
information without interference” the current constitution does not create
any public right to information held by the state. In January 2007, the
Kenyan Ministry of Information and Communications published a “draft Freedom
of Information Policy”, designed to “provide a framework for the
implementation of the Freedom of Information Bill and review of existing laws,
regulations and procedures”. The Policy follows a draft Government Bill
published in 2005, as well as a draft Freedom of Information Bill developed
by the Kenyan Section of the International Commission of Jurists (ICJ) in
2006. The ICJ Bill has since been presented to parliament by Professor Prof.
Anyang’ Nyong’o, but has not yet been discussed;4 the status of the
government bill is unclear.
Access to public information and
the Draft New Constitution
Under the proposed new
constitution:
Article 35. (1) Every citizen has the right to access- 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 publicize any important information affecting the nation. Article 232 (Values and principles of public service) (1) The values and principles of public service include: (f) transparency and provision to the public of timely, accurate information. CONSUMER RIGHTS In the emerging digital economy where technology is rapidly taking the place of personal interactions in the supply of goods and services, the consumer has become both more empowered and more vulnerable. Strong consumer protection regimes are an imperative for an internet-driven globalized market.
Consumer Rights and the current
Constitution
The current constitution does not
make any provisions declaring the rights of consumers. Consumer protection
has hitherto remained the subject of statutory enactments/Acts of Parliament.
The Kenya Information and Communications Act, 1998 and its Kenya
Communications Regulations 2001 make various provisions for the protection of
consumers of ICT services.
Consumer Rights and the Draft New Constitution Under Article 46 (1) of the proposed new Constitution, all Consumers have the right- a. to goods and services of reasonable quality; b. to the information necessary for them to gain full benefit from goods and services; c. to the protection of their health, safety and economic interests; and d. to compensation for loss or injury arising from defects in goods or services.
THE PLACE OF ICT IN THE
ORGANIZATION OF THE FUNCTIONS OF GOVERNMENT
It may be understood why in the old economy most governments put transport and communications under one ministerial/executive docket. The two involved merely the use of technology in the movement or relay of a thing or a message from one geographical location to another. In the new economy, with the technological merger of the computing, media and telecommunications industries, communications technology has advanced from being merely a conduit for the conveyance of messages, to a technological space where a broader range of social and commercial human interactions take place. Over time, because of its potential to transform business and organization, ICT has exceeded its transport counterpart to establish for itself a unique place in the corporate and government structure. There is no longer any synergy to be achieved by thematically aligning ICT with transport in the organization of corporate or government affairs.
Organization of the Functions of
Government in the Current Constitution
Section 16 of the current
constitution empowers Parliament or the President to establish the offices of
Minister of Government and for the appointment of Ministers from among
persons elected to the National Assembly. The Constitution does not define
the ministerial portfolios that may be established or the number of ministers
who may be appointed. The Ministers, along with the President, the
Vice-President, the Prime Minister and two Deputy Prime Ministers, comprise
the cabinet whose function is to aid and advise the President in the
government of Kenya.
In the current structure and organization of government, there are 40 ministries, under which the Ministry of Information and Communications is separate and distinct from the Ministry of Transport. The functions of each Ministry are outlined in Presidential Circular No. 1 of 2005. The executive functions of the Ministry of Information and Communications extend to, among other matters: • Information and Broadcasting Policy. • Development of the film industry and licensing. • Communications Policy The executive functions of the Ministry of Transport include formulation and implementation of transport policies and all matters and institutions relating to air, road, rail and water transport including the Kenya Railways Corporation, Kenya Ports Authority, Kenya Airports Authority, Kenya Ferry Services, Kenya Civil Aviation Authority, Transport LIcencsing Board, etc. The Organization of the Functions of Government and the Draft New Constitution
In Article 186 of the Draft New
Constitution which is titled ‘Respective functions and powers of national and
county governments’, it is provided that:
“(1) Except as otherwise provided by this Constitution, the functions and powers of the national government and the county governments, respectively, are as mentioned in the Fourth Schedule.
The Fourth Schedule goes on to
list 35 functions of the National Government. Number 18 on the list is worded
thus:
“Transport and communications, including, in particular – Road traffic, road construction, railways; marine navigation; civil aviation; pipelines; space travel; postal services; telecommunications; radio and television broadcasting”.
Under the Schedule, aspects of the
old economy (eg road traffic, railways, pipelines, etc) are clustered
together with those of the new economy (telecommunications, radio and
broadcasting). Neither the main body of the Draft Constitution nor the
Schedule bears any express reference to ICT.
Two interpretations may be made of
the wording and style of the Fourth Schedule. Firstly, it may be said that
for the purposes of executive control, the Schedule prescribes no distinction
between transport and communications/ICT. Secondly, it may well be that the
Schedule is not a prescription of the number and designation of ministerial
portfolios in the government but merely a general statement about what the
functions of government and that it imparts no obligation on the executive to
bring transport and ICT under one Ministerial docket.
The Draft New Constitution should
not be ambivalent about the proper place of ICT in the affairs of government.
This is because ICT continues to be the transformative driving force in the
emerging information society and the information economy. Kenya’s own Vision
2030, which is the national development blueprint for steering the country
into economic prosperity for the next twenty years, seeks to leverage on ICT
as a stimulus for economic development. Perhaps the Proposed Constitution
could have made a more distinct definition of the role and place of ICT in
the organization of the affairs of government.
Conclusion
The Draft New Constitution
promises a new dawn for Kenya, not only for ICT but also for a new set of
national values, the structure of government and the rights and freedoms of
the citizen. The Draft proposes to give constitutional recognition to a
number of norms that have hitherto been the subject of the English Common law
or Kenyan statute law. These norms, such as the right to public information,
press freedom and consumer rights, may not radically change the structure and
composition of the ICT industry if the Draft New Constitution is affirmed in
the referendum, but they will provide a new template of constitutional values
and principles that will redefine the way that the government, the investor
and the citizen will interact in the ICT environment.
Michael M. Murungi is an ICT legal
expert
mmurungi@kenyalaw.org
|
The subject of individual privacy in Kenya does not easily lend itself to
academic investigation. Kenyan law on the subject remains sketchy and even with
the improved level of the enjoyment of civil liberties and democratic
governance that the country has experienced in the last three decades,
individual assertions of the right to privacy have not translated into a
watershed legal claim where the country’s courts proceed to issue eloquent and
authoritative pronouncements on this area of law. That, however, is not to say
that an impression cannot be made of Kenyan conceptions of privacy from both
individual or community practices and written law.
Popular discourse on privacy and personal data protection in Kenya has long been the pet subject of banking law, particularly as it relates to the protection of personal financial information. However, the subject has more recently been thrown into relief by its association with data protection in the context of the increased use of information and communications technologies (ICTs), the distributed and trans-boundary nature of modern day communications and the emergence of the globalized information society.
The old constitutional order
For a long time, the right to privacy had not been expressly legislated as a constitutional norm in Kenya. It was only expressed as a broad constitutional norm encompassed in the right against unlawful entry, search and seizure of one’s property and effects and interference with a person’s ‘correspondence’. In section 76 of the now repealed Constitution, it was provided:
‘Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.’
Section 79 provided that:
‘Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.’
The rights expressed in these provisions were made subject to the standard constitutional exceptions to the enjoyment of individual rights: the interests of national defence, public order and morality, the rights of other persons and the exercise of authority by state officers.
While constitutional and statute law alike offered no legal definition of the term ‘personal information’, certain Acts of Parliament contained provisions restricting the collection and use of certain types of information relating to the identity and the communications of individual persons. However, the restrictions were narrowly contextualized and their cumulative effect did not meet the threshold for what could be termed as a general legal framework for privacy and data protection.
As a corollary, there was no express constitutional right to confidentiality and the protection of personal information. As a matter of fact, the first reference to the concept of confidentiality in the Kenyan constitution was in setting out one of the circumstances in which the individual’s freedom of expression and from interference with his correspondence may be limited – the protection of information received in confidence. Kenyan practice on the right to privacy and confidentiality has hitherto been guided largely by the Common law – a system of law developed from the judicial opinions of the English judiciary.
A quantum leap, legally
On August 27, 2010, Kenya promulgated a new constitution – The Constitution of Kenya, 2010. Some minutes past 1030 Hrs that sunny Friday morning at Uhuru Park in Nairobi, Kenyans pressed the reset button on, among other things, their set of national values, the bill of rights and their system and structure of government. As far as privacy and data protection is concerned, the new Constitution makes an emphatic break with the tradition, the wording and even spirit of the repealed Constitution. At the stroke of President Mwai Kibaki’s declaration of the promulgation, Kenyans’ rights to privacy, to access to public information and the right to object to unnecessary demands for personal information leapt out of legal obscurity to claim their place in the new bill of rights among constitutionally elite rights such as the right to life and freedom of expression.
Under Article 31 of the new Constitution, every person has the right to privacy, which includes the right not to have their person, home or property searched; their possessions seized; information relating to their family or private affairs unnecessarily required or revealed; or the privacy of their communications infringed.
In Article 35, every citizen has the right of access to information held by the State; and any information held by another person which is required for the exercise or protection of any right or fundamental freedom. Further, every person has the right to the correction or deletion of untrue or misleading information that affects him or her. Finally, the provision to the public of timely and accurate information is included in Article 232’s articulation of the values and principles that should guide public institutions in fulfilling their service to the public.
Even to moderate civil libertarians and advocates of privacy and transparent governance, this shift is a quantum leap for Kenya’s jurisprudence and one can only begrudge the fact that it has taken such a long time. In the wording of these new species of rights can be found the spirit of seven key principles that have been incorporated in three instruments that are reference points in the international discourse on privacy and data protection: the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data; the United Nations Guidelines Concerning Computerized Personal Data Files and the OECD Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data. Those principles are:
• Notice—persons should be given notice when their data is being collected;
• Purpose and disclosure— personal information should only be used for the purpose for which it has been stated;
• Consent—the information should not be disclosed without the knowledge and consent of the person to whom it relates;
• Security—the information should be kept secure from any potential abuses;
• Access—subjects should be allowed to access their personal information and make corrections to any inaccuracies; and
• Accountability – those who collect and manage the information are in an ethico-legal relationship with the subjects for which they should be transparent and accountable.
In due course, Kenya’s parliament or the Judiciary should, through statutory enactments and judicial opinions, make further provisions relating to more particular aspects of data protection, such as the typology and classes of personal information and their differential treatment and a delineation of the circumstances that would constitute a reasonable demand for or disclosure of personal information. So will an organic Kenyan jurisprudence on privacy and data protection emerge and evolve.
Popular discourse on privacy and personal data protection in Kenya has long been the pet subject of banking law, particularly as it relates to the protection of personal financial information. However, the subject has more recently been thrown into relief by its association with data protection in the context of the increased use of information and communications technologies (ICTs), the distributed and trans-boundary nature of modern day communications and the emergence of the globalized information society.
The old constitutional order
For a long time, the right to privacy had not been expressly legislated as a constitutional norm in Kenya. It was only expressed as a broad constitutional norm encompassed in the right against unlawful entry, search and seizure of one’s property and effects and interference with a person’s ‘correspondence’. In section 76 of the now repealed Constitution, it was provided:
‘Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.’
Section 79 provided that:
‘Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.’
The rights expressed in these provisions were made subject to the standard constitutional exceptions to the enjoyment of individual rights: the interests of national defence, public order and morality, the rights of other persons and the exercise of authority by state officers.
While constitutional and statute law alike offered no legal definition of the term ‘personal information’, certain Acts of Parliament contained provisions restricting the collection and use of certain types of information relating to the identity and the communications of individual persons. However, the restrictions were narrowly contextualized and their cumulative effect did not meet the threshold for what could be termed as a general legal framework for privacy and data protection.
As a corollary, there was no express constitutional right to confidentiality and the protection of personal information. As a matter of fact, the first reference to the concept of confidentiality in the Kenyan constitution was in setting out one of the circumstances in which the individual’s freedom of expression and from interference with his correspondence may be limited – the protection of information received in confidence. Kenyan practice on the right to privacy and confidentiality has hitherto been guided largely by the Common law – a system of law developed from the judicial opinions of the English judiciary.
A quantum leap, legally
On August 27, 2010, Kenya promulgated a new constitution – The Constitution of Kenya, 2010. Some minutes past 1030 Hrs that sunny Friday morning at Uhuru Park in Nairobi, Kenyans pressed the reset button on, among other things, their set of national values, the bill of rights and their system and structure of government. As far as privacy and data protection is concerned, the new Constitution makes an emphatic break with the tradition, the wording and even spirit of the repealed Constitution. At the stroke of President Mwai Kibaki’s declaration of the promulgation, Kenyans’ rights to privacy, to access to public information and the right to object to unnecessary demands for personal information leapt out of legal obscurity to claim their place in the new bill of rights among constitutionally elite rights such as the right to life and freedom of expression.
Under Article 31 of the new Constitution, every person has the right to privacy, which includes the right not to have their person, home or property searched; their possessions seized; information relating to their family or private affairs unnecessarily required or revealed; or the privacy of their communications infringed.
In Article 35, every citizen has the right of access to information held by the State; and any information held by another person which is required for the exercise or protection of any right or fundamental freedom. Further, every person has the right to the correction or deletion of untrue or misleading information that affects him or her. Finally, the provision to the public of timely and accurate information is included in Article 232’s articulation of the values and principles that should guide public institutions in fulfilling their service to the public.
Even to moderate civil libertarians and advocates of privacy and transparent governance, this shift is a quantum leap for Kenya’s jurisprudence and one can only begrudge the fact that it has taken such a long time. In the wording of these new species of rights can be found the spirit of seven key principles that have been incorporated in three instruments that are reference points in the international discourse on privacy and data protection: the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data; the United Nations Guidelines Concerning Computerized Personal Data Files and the OECD Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data. Those principles are:
• Notice—persons should be given notice when their data is being collected;
• Purpose and disclosure— personal information should only be used for the purpose for which it has been stated;
• Consent—the information should not be disclosed without the knowledge and consent of the person to whom it relates;
• Security—the information should be kept secure from any potential abuses;
• Access—subjects should be allowed to access their personal information and make corrections to any inaccuracies; and
• Accountability – those who collect and manage the information are in an ethico-legal relationship with the subjects for which they should be transparent and accountable.
In due course, Kenya’s parliament or the Judiciary should, through statutory enactments and judicial opinions, make further provisions relating to more particular aspects of data protection, such as the typology and classes of personal information and their differential treatment and a delineation of the circumstances that would constitute a reasonable demand for or disclosure of personal information. So will an organic Kenyan jurisprudence on privacy and data protection emerge and evolve.
On July 20, 2009, during an event to mark the tenth anniversary of the Communications Commission of Kenya (CCK), President Mwai Kibaki, through a speech read on his behalf by Vice President S. Kalonzo Musyoka directed “the Ministry of Information and Communication to put in place within six months from now, an elaborate databank that will ensure all mobile telephone subscribers are registered". The directive was preceded by the President’s concern over the increased use of mobile phones for criminal purposes.
In the wake of the directive, I took questions from journalists Jevans Nyabiage of the Daily Nation and Michael Ouma of the East African Standard.
Qstn: The president yesterday directed that all SIM cards should be registered within six months. Does the President’s directive constitute a regulation or it has to go through Parliament?
Ans: The President’s directive, albeit well-meaning, needs to be more clearly expressed in order for it to be properly applied. The clearest form of expression that it can be given is legislation. Section 27 of the Kenya Information and Communications Act, 1998 empowers the Minister for Information and Communications to make regulations with respect to “the privacy of telecommunication”. Presently, no such regulations have been made. This ministerial power would be the first thing to leap into the mind of those in charge of implementing the President’s directive. The Minister can invoke this section to make regulations providing for the collection, storage and use of subscribers’ personal information. Being in the nature of ministerial regulations, they would not need to be considered by Parliament and the Minister may issue them through a Legal Notice. On the other hand, Parliament may take this as an opportunity to pass a comprehensive legal framework governing the collection, management and use of personal information in Kenya not only in telecommunications but in all spheres of commerce and governance. This would be through an Act of Parliament which would take a longer time before it can acquire the force of law.
Qstn: I am just wondering whether [the President’s directive] infringes on the right of privacy of individuals.
Ans:
- While civil libertarians would argue that the implementation of the President’s directive would amount to an infringement on the privacy of individuals, the state would argue that the move is necessary as a matter of national security and in the interests of safeguarding the welfare of the consumers of mobile phone services. The two arguments are equally compelling, though the state would appear to have the upper hand. Save as a broad constitutional norm encompassed in the right against unlawful entry and the search and seizure of one’s property and effects, the right to privacy is not expressly legislated as a constitutional norm in Kenya. As a corollary, there is no express constitutional right to confidentiality and the protection of personal information. Kenyan practice on the right to privacy and confidentiality is guided largely by English Common law – a system of law which has developed from the judicial opinions of the English judiciary. On the other hand, while the Constitution is not clear on individual privacy, it very clearly permits the abrogation of constitutional rights in the interests of public welfare and national security.
Qstn: What are the possible hurdles that the move is likely to face?
Ans:
- Opposition from civil libertarians who argue that the implementation of the directive would be an infringement on the individual’s right to privacy.
- The period of six months may be an onerous deadline for mobile phone operators. If we have approximately 18 million mobile phone subscribers in the country, and assuming that the legal framework is in place very shortly after the directive, we are talking about registering 3 million people per month. That’s about 100,000 people per day. Depending on the nature and breadth of the information that has to be registered, the process may be an enormous strain on the infrustructural and financial resources of some of the operators. Spain, which has over 20 million pre-paid mobile phone users, gave a period of almost a year for their registration.
- There is an inherent technical difficulty in fashioning a legal framework that perfectly balances the spectrum of the legal rights and obligations that stand to be affected by the President’s directive: the state’s claim to preserving national security by curbing phone-related crime; the individual’s right to privacy; the mobile operators’ claim to protection from new licensing conditions that roll back on their investment; the consumer’s increased vulnerability to identity theft, etc.
- The implementation of the directive may not achieve dramatic results in crime prevention and it may lead to new forms of crime, such as identity theft.
Qstn: Does the CCK currently have any legislation that compels mobile service providers to demand for identification before issuing out a SIM card to a subscriber?
Ans:
The simple answer to this question would be no. There is no law that imposes such an obligation on mobile service providers. As I have stated, section 27 of the Kenya Information and Communications Act empowers the Minister for Information and Communications to make regulations with respect to “the privacy of telecommunication” but no such regulations have been made.
Perhaps an equally valid question to ask would be “is there any law that forbids mobile service providers from taking personal identification information from their subscribers?”
The answer again is “no”. Already, many subscribers of the ZAP and M-PESA mobile phone money transfer services have had to give their personal information to the operators as a precondition for registering for the services.
Qstn: What is the position on the matter as contained in the KCA Bill as well as any related legislation?
Ans:
I have previously referred to the Constitution of Kenya and section 27 of the Kenya Information and Communications Act, 1998. In addition, Section 93 of the Act forbids any person from disclosing without consent any “information with respect to any particular business… “which relates to the private affairs of any individual or to any particular business during the lifetime of the individual or business”.
However, the section provides for three instances in which disclosure may be lawfully made:
in the course of the performance of the duties of the CCK;
in the investigation of a criminal offence or for the purpose of any criminal proceedings;
for the purpose of any civil proceedings brought under or by virtue of the Act.
Any disclosure of information that contravenes this section is punishable by a fine of up to Kshs. 100,000/-
Section 31 makes it an offence for a telecommunications operator to intercept or disclose a message sent through the operator’s system or to disclose the statement or account of its subscriber. The prescribed punishment for the offence is a fine not exceeding Kshs. 350,000 (USD 4375) or imprisonment for a term of up to 3 years or to both imprisonment and fine.
Further, section 44 forbids any person from using radio communication apparatus with the intention of obtaining information on the contents, the sender or addressee of any message. Except in the course of legal proceedings, the section forbids the disclosure of any information as to the contents, sender or addressee of any message coming to the person through a radio communication.
A conviction for contravening any of these provisions will lead to a fine of up to Kshs. 1 Million (USD 12,500) or imprisonment for up to 5 years or both fine and imprisonment.
Qstn: Do you think it would be prudent for operators to demand for forms of identification before issuing out new SIM Cards? What would such a legislation have on mobile service providers in as far as penetration and tapping new subscribers volumes is concerned?
Ans:
Even though from a national security point of view it may be prudent for operators to retain the identity of their subscribers, it is not in the operators’ economic interests to do so. Even though this may be said of any market for consumer goods, it is especially evident in the mobile telephone services market that operators who are the first to tap into a virgin market acquire a considerable competitive advantage over their rivals. Brand loyalty and the inconveniences of migrating to another operator can be serious barriers to entry for late market comers. Therefore, market hungry operators want to put as little impediments as possible to the acquisition of a SIM card. The mandatory registration of SIM Card buyers would therefore not only slow down market penetration but it would also mean loss of business for the operator from consumers who would prefer not to give up their personal information. Moreover, in the absence of a law compelling them to retain their subscribers’ personal information, any self-interested operator would choose to avoid altogether the operational costs and the attendant legal risks of maintaining and protecting the personal information database.
No comments:
Post a Comment