Introduction

Kenya is an Information and Communication Technology hub, informally known as the Silicon Savannah for its innovations in technology. That does not, however, mean that Kenya is not immune to the digital divide. The cost of internet in the country is arguably one of the most expensive in the region which leads to digital exclusion of mostly youth and women. This consequently leads to violations of human rights such as on the right to access to information. The country is home to hundreds of technology companies and ICT start-ups. The state of the digital spectrum in Kenya is in focus in this segment of the report. The data in this section was obtained through a review of the various reports of the ICT authorities in the country, individual company reports as well as credible media reports.

Digital Rights in Kenya and impact of Covid-19 Regulations

Kenya presents a breath of fresh air as far as the enjoyment of digital rights is concerned. As of 2020, Kenya had an internet penetration of approximately 87%. This high rate is mainly because Kenya is home to M-PESA, which is a mobile wallet provider and the offered secure payment system encourages internet access.^[1] According to the Communication Authority of Kenya, Internet subscriptions in Kenya rose about 5.1% between April and June 2020 as demand for the service surged amid stay-at-home measures imposed by the government as a result of the challenges presented by the COVID-19 pandemic. Subscriptions increased to 40.9 million in the quarter ending June 2020, up from 38.9 million in the period ending March 2020. The Communication Authority of Kenya attributed the rise to increased demand for access to information online, coupled with transfer of more services to the digital space during the pandemic period.^[2]

Additionally, the country has a largely independent judicial system and has developed jurisprudence in the area of digital rights. Courts of law have issued progressive and liberal judicial pronouncements geared towards ensuring that the digital rights of the country’s citizens are respected, their privacy is guaranteed and that the citizens are able to access courts for redress in case of an alleged violation, pursuant to the country’s Bill of Rights. Additionally, Kenya has a robust Bill of Rights and Article 35 specifically provides for access to information. The Access to Information Act, 2016 seeks to operationalize this constitutional provision. Further, the Data Protection Act seeks to offer data protection. Despite the challenges presented by the COVID-19 pandemic that re-directed the country’s attention, Kenya made some positive strides in digital rights and digital inclusion in the year 2020. Some key developments included the following:

Privacy, Digital IDs and Surveillance

1. Appointment of a Data Commissioner

Pursuant to the Data Protection Act No. 24 of 2019, President Uhuru Kenyatta nominated Immaculate Kassait as Kenya’s Data Commissioner.^[3] The Commissioner is expected to put in place structures and systems for the protection of personal citizen’s data as per the directions given by the High Court in the Huduma Number case. The Huduma number that was rolled out beginning December 2020 presented challenges relating to data protection and privacy and there is need to watch that space. The Data Commissioner will be responsible for establishing and maintaining a register of data controllers and data processors; exercising oversight on data processing operations and receiving and investigating any complaint by any person on infringements of the rights under the Act. The Act, for instance, requires that personal data can only be “collected for explicit, specified and legitimate purposes and not further processed in a manner incompatible with those purposes.”^[4]

1. Huduma Number/National Integrated Identity Management System (NIIMS) Case

The government of Kenya introduced a national database-the National Integrated Identity Management System. The Huduma Number proposals were challenged in the High Court of Kenya by human rights organizations due to, among others, want of public participation and the fact that the proposals sought to disenfranchise already marginalized groups in Kenya such as the stateless persons. One more controversial aspect of this government project was the fact that the registration for the Huduma Number was a prerequisite to the provision of government services such as healthcare. The High Court subsequently determined that the government move was constitutional as long as that information was properly protected. The court also observed that any collection of DNA and the recording of a person’s precise location was intrusive and unconstitutional as it was a breach on their privacy.^[5] The petitioners disagreed with particular sections of the High Court’s judgment on this matter and they filed an appeal at the Court of Appeal. This appeal is yet to be heard and conclusively determined.

Notably, the Huduma Bill does not have sufficient provisions on data protection measures. The introduction of a centralized population register with the sharing of data across a range of functional government and/or private databases and users for a wide range of services and transactions presents a risk to privacy that is categorically different from the prevailing situation where the data is stored in separate databases. The Bill proposes various penal measures for non-compliance with various provisions of the Bill.^[6] It is our hope that the Huduma number will be implemented in strict compliance with the decision of the High Court in the case so as to protect citizen’s personal data.

Hate Speech, Misinformation and Criminal Defamation Laws

The Computer Misuse and Cybercrimes Act^[7]

In July 2019 the Senate moved to the High Court to challenge the constitutionality of 24 laws that were passed by National Assembly without the involvement of Senate, one of the chambers of parliament.  Kenya is a bicameral legislature with a two-chamber parliament. After hearing and determining the petition, the High Court of Kenya voided a number of bills that were passed by the National Assembly that did not involve the Senate. The laws that were nullified included the Computer Misuse and Cybercrimes Act, Kenya’s ICT principal legislation. The High Court suspended their ruling for nine months to grant parliament adequate time to right the wrongs as pointed out by the court. The National Assembly has threatened to file an appeal against this judgment. The implication of the decision of the High Court is that the laws will cease to be in application at the lapse of the nine months, in compliance with the court order.

Digital Exclusion

1. Gender and ICT

Many women in Kenya do not have access to mobile phones and some possess only a SIM card which means that they rely on friends and neighbours to access telephony services. It is important to understand the challenges that women face in accessing digital resources. Three main bottlenecks that are often identified in Kenya include affordability, relevance and lack of digital skills amongst members of particular genders. The country’s digital infrastructure is less robust and there is a rural-urban divide and gender digital exclusion for some parts of the country especially in the North.

1. Enjoyment of Freedom of Expression online in 2020

The COVID-19 pandemic has brought to the fore on the inequalities in access to the internet and digital technologies in Kenya. The untimely pandemic has also been a timely reminder of the stark inequalities in internet access and digital technologies among young people in Kenya. The enjoyment of freedom of expression online in 2020 in the country was characterized by a surge in the numbers of internet users translating to the fact the government did not restrict access.

Recommendations

1. The government is urged to address the digital inclusion inequalities during and after the COVID-19 pandemic.
2. The government ought to address the gender inequality gap to ensure that both men and women as well as young people have unrestricted access to the internet.

• Ensure that the planned Huduma number roll-out does not infringe on human rights and its implementation is as per the court decision in the Huduma number case.

References

1. Share of internet users in Africa as of March 2020, by country https://www.statista.com/statistics/1124283/internet-penetration-in-africa-by-country/
2. Fourth Quarter Sector Statistics Report for the Financial Year 2019/20 (April-June 2020) https://ca.go.ke/wp-content/uploads/2020/10/Sector-Statistics-Report-Q4-2019-2020.pdf
3. Immaculate Kassait sworn in as Data Commissioner, https://www.kbc.co.ke/immaculate-kassait-sworn-in-as-data-commissioner/
4. Data Protection Act, 2019 Available at http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/2019/TheDataProtectionAct__No24of2019.pdf
5. Huduma Namba: Kenya court halts biometric ID over data fears: https://www.bbc.com/news/world-africa-51324954
6. Seven Things You Should Know About Huduma Number, https://icj-kenya.org/news/latest-news/271-seven-things-you-should-know-about-huduma-namba
7. Kenya Digital Services Tax, https://www.trade.gov/market-intelligence/kenya-digital-services-tax
8. Introducing Digital Service Tax https://www.kra.go.ke/images/publications/Brochure–Digital-Service-Tax–final.pdf
9. Proposed Digital Services Tax in Kenya, https://www.bowmanslaw.com/insights/tax/proposed-digital-services-tax-in-kenya/
10. High Court nullifies 23 laws passed without Senate’s approval https://www.businessdailyafrica.com/bd/news/high-court-nullifies-24-laws-senate-s-approval-2725652

^[1] See Share of internet users in Africa as of March 2020, by country https://www.statista.com/statistics/1124283/internet-penetration-in-africa-by-country/

^[2] Fourth Quarter Sector Statistics Report for the Financial Year 2019/20 (April-June 2020) https://ca.go.ke/wp-content/uploads/2020/10/Sector-Statistics-Report-Q4-2019-2020.pdf

^[3] Immaculate Kassait sworn in as Data Commissioner, https://www.kbc.co.ke/immaculate-kassait-sworn-in-as-data-commissioner/

^[4] Data Protection Act, 2019 Available at http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/2019/TheDataProtectionAct__No24of2019.pdf

^[5] Huduma Namba: Kenya court halts biometric ID over data fears: https://www.bbc.com/news/world-africa-51324954

^[6] Seven Things You Should Know About Huduma Number, https://icj-kenya.org/news/latest-news/271-seven-things-you-should-know-about-huduma-namba

^[7] High Court nullifies 23 laws passed without Senate’s approval https://www.businessdailyafrica.com/bd/news/high-court-nullifies-24-laws-senate-s-approval-2725652