Tag: WKA Advocates

‘SALIMIA YEYE’ (SAY HELLO TO THEM)- BALANCING RIGHTS TO PRIVACY VS PUBLIC INTEREST

Recently, Kenya has seen a surprising shift in its political landscape. A ‘revolution’ led by the youth referred to as the Gen-Z movement has emerged. This movement is particularly intriguing as it comprises young individuals without a leader or any political or ethnic ties. The resilience of the movement has even led to Kenya being recognized as ‘the giant of Africa’.

The inception of this transformative movement stemmed from the contentious Finance Bill 2024, which was backed by the ruling party United Democratic Alliance (UDA) with the intention of enacting it into law. The Finance Bill, 2024 aimed at imposing punitive taxes on Kenyans, leading to a further increase in the cost of living. This move came at a time when Kenyans were already grappling with challenging financial situations and uncertainties in the economic landscape. The proposal sparked widespread public outrage and unrest, as the political elite were perceived to be living lavishly at the expense of the ordinary mwananchi. Citizens voiced their dissent towards the proposed Finance Bill 2024 on various digital platforms like Facebook, Instagram, and X (formerly known as Twitter), while a significant portion of the political class continued to support the Bill.

The younger generation, previously perceived as disengaged from politics, took to the streets to exercise their right to protest and demonstrate, as outlined in Article 37 of the Constitution of Kenya (the Constitution). The theme of the peaceful demonstrations was #REJECT THE FINANCE BILL 2024. Gen-Z filled Nairobi’s Central Business District, Mombasa, Eldoret, Nakuru and other parts of the country, chanting patriotic songs and the Kenyan National Anthem to voice their opposition to a law that would raise the cost of living, affecting basic items like bread, sanitary towels, cancer treatment, and diapers. The Kenyan police responded with brutality, but that did not deter the movement. In any case, it motivated Kenyans to fight more.

Despite public appeals, a majority of National Assembly Members, mainly from the ruling party, voted in favour of the Finance Bill 2024 during the first reading. This raises questions about whom the National Assembly members truly represent and how devolution empowers local mwananchi if their representatives outrightly ignore their pleas.

Gen-Z responded by sharing the personal information of political figures, the police officers who exercised brutality during the protests, and the personal information of their family members, on social media for the public to urge them to reject the Bill. Further, members of the clergy were called out for remaining silent at a time when their valued contribution towards rejecting the Finance Bill 2024 would have been appreciated. The public intensified pressure, leading to the announcement of amendments to the Finance Bill 2024. However, Gen-Z persisted with protests, demanding the Bill’s complete rejection, not just amendments. On June 25, 2024, history was made as the younger generation took to the streets with the intention of occupying Parliament to urge the members of National Assembly to reject the Bill. Thousands of youth marched to the streets and courageously rejected the Finance Bill 2024. The peaceful protests faced a harsh police crackdown, with many protesters arrested, beaten, abducted, and some killed. The streets of Nairobi were filled with the pungent smell of teargas. Despite the challenges, the movement remained steadfast and persisted with the hashtag #REJECT NOT AMEND and #RUTO MUST GO.

Meanwhile, while protests were ongoing, a majority of the members of National Assembly voted in favour of the Finance Bill 2024 and the Bill was forwarded to the President for his assent. The Gen-Z were so enraged and determined, that they overpowered the police and stormed into the Parliament building. Various political leaders were captured on videos escaping the wrath of the people through panya-routes aided by their security guards. Gen-Z stormed into Parliament’s kitchen and enjoyed the sumptuous meal prepared for the politicians and some made their way into the offices where they sampled drinks to wash down the meal. Similarly, in Mombasa, protesters stormed into the County Assembly and made themselves comfortable.

International attention was drawn to Kenya’s protests, with over 4 million posts under #REJECTFINANCEBILL2024 on social media. On June 26, 2024, President William Samoei Ruto succumbed to public pressure and declined to assent to the Bill, recommending its deletion. He further made a press statement promising to: dissolve 47 State Corporations with duplicative functions; suspend the appointment of Chief Administrative Secretaries; reduce the number of advisors in government by 50%;

remove the budget lines for the budget cuts for the offices of the First Lady, the spouses of the Deputy President and Prime Cabinet Secretary;

remove the budgetary provisions for confidential budgets in various Executive offices,

including the President’s office; suspend purchase of new motor vehicles by government for 12 months, except for security agencies;

suspend all non-essential travel by state officers; and ban the participation of state and public officer in harambees.

The President invited Gen-Z for a dialogue on social media (X space) which thousands of young people attended and voiced their concerns with the President’s administration. The President was able to respond to queries raised and promised to rectify the issues raised. This marked a rare occasion where there was an elaborate communication between the government and the governed. Further, it made President William Samoei Ruto the first president to have a dialogue on X as a result of the digital movement. Shortly thereafter, on 11th July 2024, the President dissolved his entire Cabinet.

RIGHT TO PRIVACY VS PUBLIC INTEREST

 The issue of data privacy versus public interest arose, with concerns raised by the Data Protection Commissioner  (ODPC),  Immaculate  Kassait,  regarding  the  sharing  of  personal  information  of political figures and various police officers on social media without consent, violating their privacy rights.

Following this statement, members of the public leaked her phone number for people to salimia yeye. Screenshots were later shared of how the Gen-Z had salimiad the ODPC. Among the state officers whose personal data was leaked include the President, deputy President, the Speaker of the National Assembly, the Prime Cabinet Secretary and the opposition leader.

This brings us to the question, what is the fine balance between privacy and public interest? We must ask ourselves, do public or state officers have a right to privacy while performing public duties or duties related to their respective offices?

 

Who is a public officer in Kenya?

According to the Public Officers Ethics Act, No.4 of 2003, a “public officer” in Kenya means any officer, employee or member, including an unpaid, part-time or temporary officer, employee or member, of any of the following-

1. the (national) Government or any department, service or undertaking of the Government;
2. the National Assembly or the Parliamentary Service;
3. a local authority (such as a county government);
4. any corporation, council, board, committee or other body which has the power to act under and for the purposes of any written law relating to local government, public health or undertakings of public utility or otherwise to administer funds belonging to or granted by the Government or money raised by rates, taxes or charges in pursuance of any such law;
5. a co-operative society established under the Co-operative Societies Act; (Provided that the Public Officers Ethics Act shall apply to an officer of a co-operative society within the meaning of the )
6. a public university;
7. any other body prescribed by regulation for the purposes of this paragraph;

Who is a state officer in Kenya?

 Based on Article 260 of the Constitution that defines “State office”, the list of state officers in Kenya consists of the–

1. President;
2. Deputy President;
3. Cabinet Secretary;
4. Member of Parliament (Member of the National Assembly, Member of the Senate, County Woman Representative);
5. Judges and Magistrates;
6. Member of a commission to which Chapter Fifteen (of the Constitution) applies;
7. Holder of an independent office to which Chapter Fifteen applies;
8. member of a county assembly, governor or deputy governor of a county, or other members of the executive committee of a county government;
9. Attorney-General;
10. Director of Public Prosecutions;
11. Secretary to the Cabinet;
12. Principal Secretary;
13. Chief of the Kenya Defence Forces;
14. Commander of a service of the Kenya Defence Forces;
15. Director-General of the National Intelligence Service;
16. Inspector-General, and the Deputy Inspectors-General, of the National Police Service; or
17. An office established and designated as a State office by national legislation;

What is the public interest?

 Public interest is the welfare or well-being of the general public and society. In substantive or policy terms, the public interest may be envisaged as embracing those activities necessary to the safety of the state and the welfare of the community: defense, police protection, education, and public health and sanitation.

In legal practice, the concept of public interest is often fluid and context-specific, requiring a balanced interpretation that considers various societal needs and rights. Courts and legal professionals frequently rely on precedents, statutory interpretations, and constitutional principles to guide their understanding of public interest in different situations.

Public participation vs privacy

 Article 118 of the Constitution requires the Parliament to conduct its business in an open manner and also to facilitate public participation and involvement in the legislative and other business of Parliament and its committees. Public Participation refers to the process by which citizens, as individuals, groups or communities (also known as stakeholders), take part in the conduct of public affairs, interact with the state and other non-state actors to influence decisions, policies, programs, legislation and provide oversight in service delivery,

development and other matters concerning their governance and public interest, either directly or through freely chosen representatives.

In Kenya, the common method of public engagement involves requesting the public to provide feedback on proposed laws through a memorandum. Nonetheless, this approach is outdated as it excludes many individuals who are unable to read and write. Additionally, awareness about the platforms where these memoranda are published is limited. Consequently, this method hinders a large portion of the public from sharing their opinions on proposed legislation.

Further, the state officers seem to have made ignoring public opinions their favorite pastime, rendering public engagement about as useful as a chocolate teapot. So, even though leaking politicians’ and police officers’ phone numbers might raise a few eyebrows in the privacy department, it did create a supercharged platform for the public to have their say on the Finance Bill 2024. It’s like a modern-day democracy dance-off where the public calls the shots and the politicians boogie to the tune. Now, with politicians sweating over their data being spilled, a new era of accountability seems to be unfolding.

Privacy rights are enshrined in the following legislations:

1. Article 31 of the Constitution provides that:-

“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 ”

2.    Data Protection Act, 2019 (DPA, 2019)

 This Act was enacted in 2019 to give effect to Articles 31(c) and (d) of the Constitution of Kenya which guarantee the right of every person not to have “information relating to their family or private affairs unnecessarily required or revealed” and the right not to have “the privacy of their communications infringed”.

3.  The European Union’s General Data Protection Regulations (GDPR).

 The DPA, 2019 borrowed heavily from the GDPR In 1995, the EU passed the European Data Protection Directive, establishing minimum data privacy and security standards, upon which each member state based its own implementing law. However, in 2011, a Google user sued the company for scanning her emails. Two months after that, Europe’s data protection authority declared that the EU needed “a comprehensive approach on personal data protection” and work began to update the 1995 directive. The GDPR entered into force in 2016 after passing European Parliament, and as of May 25, 2018, all organizations were required to be compliant.

However, both the DPA, 2019 and the GDRP provide an exception to the processing of personal data where it is a matter of public interest.

Section 30 of the DPA, 2019 stipulates that a data controller or data processor shall not process personal data, unless the data subject consents to the processing for one or more specified purposes or the processing is necessary for the exercise, by any person in the public interest of any other functions of a public nature.

Further, Section 51 of the DPA, 2019 provides that the processing of personal data is exempt

from the provisions of this Act if it is necessary for national security or public interest.

 Article 6 of the GDPR lists public interest among the instances in which it’s legal to process personal data.

Therefore, did leaking the mobile numbers of public and state officers, and those of their family members breach their right to privacy?

Looking at Article 31 (c) of the Constitution, the online circulation of details of the state officer’s family members might amount to a violation of their rights to privacy under the Constitution and the DPA Act, 2019. This is because they do not not hold public offices and they did not provide consent.

However, the circulation of the details of state officers and public officers does not amount to a breach of privacy. These officers hold public positions, so the public should have easy access to them. This can be through physical visits to their office doors or communication through messages, emails, or phone calls. Furthermore, the duties performed by public and state officers are of public interest, which aspect is listed under sections 30 and 51 of the DPA, 2019 as an exception for disclosure of personal information. Hence, there is no distinction between a state/public officer and the state/public office that the officer occupies, unless the political elite claim the authority to restrict public participation in matters of public interest.

 To elaborate further, one of the duties of the Parliament as envisaged in the Constitution is to facilitate public participation and involvement in the legislative and other business of Parliament and its committees. The Members of Parliament are supposed to represent the will of the people and engage them in their business. However, it is clear that some of them compromised public interest in favour of their personal interest contrary to Article 75 of the Constitution by voting in favour of the Finance Bill 2024. This is also contrary to the provisions of Article 1 of the Constitution which opines that all sovereign power belongs to the people of Kenya and shall be exercised either directly or through their democratically elected representatives. Therefore, reaching out to such Members of the National Assembly to express dissatisfaction with their services does not amount to a breach of their right to privacy. Rather, it is the civic and patriotic duty of every Kenyan citizen to keep the political class in check to prevent corruption and abuse of office.

Furthermore, who are the offended state officers and public officers going to sue? Gen-Z as a whole? Select random individuals to intimidate the rest of the public? Is the Office of the Data Protection Commissioner going to institute complaints suo moto?

 It is high time that a proper mode of public participation is established in Kenya. It proved rather disconcerting for the esteemed leaders to profess ignorance of the populace’s dissent against the Finance Bill 2024 in Kenya, especially with the resounding echo of #REJECTFINANCEBILL2024 resonating across social realms for months. Therefore, introducing digital gatherings (barazas) could serve as a celestial bridge, fostering a transparent exchange between the government and the governed. Consider, for instance, the dialogue which unfolded on X platform (space) between the  President,  and  the  Gen-Z  movement.  This  interaction  bestowed  upon  the  President  the chance to listen directly to the voices of the people and respond to their questions. Such marvels, folks, embody the essence of accountability.

The public and state officials who don’t appreciate the salimia yeye mode of public participation chosen by the Gen-Z movement, have been raising claims of defamation, as screenshots of their private conversations and bank accounts were exposed. However, in the USA, different courts have ruled its difficult to defame politicians. The main case in this area of the law is New York Times Co. v. Sullivan, which arose from allegations of police corruption in Alabama during the civil rights era. The U.S. Supreme Court ruled that the newspaper was not liable to the police commissioner who brought the claim, since it did not knowingly publish a false statement or fail to check its accuracy. The Court felt that the right of public officials to perform their duties without risking liability for defamation required a strong counterbalancing protection for citizens who are criticizing the actions of public officials. Therefore, the burden of proof lies with the Political class to proof defamation.

CONCLUSION

 Due to weaknesses and obvious loopholes, the quickest avenue which police officers have taken is to charge the individual arrested during the protests. However, the Law Society of Kenya, under the leadership of its president, has been actively and relentlessly offering pro-bono services to the protesters by bailing them out and further contributing towards cash bail for the individuals who are unable to afford it. Indeed, these are interesting times to be alive!

We are eager to observe the actions that the ODPC will take regarding the allegations of a data breach. We anticipate the politicians who will file complaints and the evidence they will present, as we are witnessing a rise in digital activism. This is a period where our Data Protection Laws are being tested. Ultimately, public interest appears to be prevailing.We hope this information is helpful in understanding the delicate balance between the right to privacy and public interest in Kenya. Please note that the contents of this newsletter are intended to provide a general guide t o the subject matter. It should not be relied upon without legal advice on its contents.

Should you require further information or legal assistance on Compliance or any other legal issue, kindly feel free to contact us at info@wka.co.ke, wakilihub.co.ke/, +254 798 03 580, Nairobi Hub: Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

Founding Partner:

• William Karoki

Associate:

• Florence Mwende

Candidate Attorney:

• Erick Karangatha