Kenya plans to roll out a national census at midnight August 24, 2019, at a cost of Sh18.5 billion. The census seeks to collect various data, including marital status, ethnicity, disability, number of children in households, deaths in the family and ownership of household goods, among others.
Crucially, Treasury CS Henry Rotich has declared it would be an offence to fail to provide the information. Doing so will earn you a prison term of not more than one year or a fine not exceeding Sh100,000 or both.
The census provides an opportunity for more discussion about the right to privacy and data protection. The collection of personal data and its use by private and public legal persons has gained prominence in public debates following the introduction of the 2018 Data Protection Bill and Policy and the recent passage of the European General Data Protection Regulations.
Legal Notice 205 published on November 13 provides that, a person who discloses census information to another person without lawful authority risks imprisonment of up to one year or a fine of Sh100,000, or both. This does not however provide clear information on who to raise the complaint with in case of data breaches.
Kenya can draw lessons from countries such as Germany on how to conduct censuses in a manner that respects citizens’ rights. Germany’s 1982 Act on a Population Census was declared unconstitutional by the country’s Constitutional Court. The census was postponed to 1987 (which was Germany’s last census mandating all citizens to provide information).
This court case helped explain the right to informational self-determination, which has always been restricted to natural persons and cannot be invoked by legal entities. Germany has since resorted to using ‘micro-census practice’, which relies on surveys of only around 10 per cent of the population and supplementing this information with official data on residents from a range of government agencies.
Drawing lessons from home, since May 2018, Article 19 Eastern Africa has conducted nationwide surveys and held three data protection awareness forums in Kisumu, Mombasa and Nairobi counties. We sought to find out whether citizens in these counties were aware of who is using their personal data and for what purpose as stipulated under Article 31 of the 2010 Constitution. We also sought to find out whether they were aware of any legal recourse they can take to protect their personal data. Our surveys have shown us the following:
First, participants from Nairobi county have more awareness of their right to privacy compared to those from Kisumu and Mombasa. This means that more people in Nairobi are likely to be unwilling to provide accurate information on data they may deem to be sensitive such as ethnicity.
Second, 70 per cent of participants (state and non-state actors) pointed out that there was a countrywide lack of implementation of data protection policies. This included government and NGOs at various organisational levels. Lack of training on established policies was also pointed out. Legal Notice 205 fails to provide procedures on how to report data breaches.
Third was the notable gender dimension in the data protection forums and surveys. There were more women than men in the data protection forums and surveys held in Nairobi and Mombasa than there were in Kisumu. Our findings on this gender dimension to data protection are an important aspect that the Kenya National Bureau of Statistics needs to take cognisance of. Some of the questions might be considered invasive to people due to various cultural gender roles.
From the foregoing, it is clear that citizens deeply care about their privacy, especially after the recent barrage of unsolicited messages from political parties, telemarketers, M-Pesa scammers and even cyber fraudsters. While census data is important in national planning, the Kenya National Bureau of Statistics needs to uphold the rights of citizens by adhering to the 2010 Constitution and the Data Protection Bill, 2018 that will soon be tabled in Parliament.
Digital Programme Officer (Eastern Africa) and Digital Policy Fellow at Article 19
[email protected], Twitter: @ekenyanito