The piloting of the National Integrated Identity Management System in 16 counties has sparked major controversy online. The government plans to spend up to Sh6 billion to create what it describes as “a single source of personal information of all Kenyans and registered foreign residents in Kenya”. Basically a massive database that will hoover up the biometric and other data, including education level and employment status.
Aside from the legitimate concerns about privacy and how such information would be secured from abuse absent a law on data protection, there is an unstated assumption that the state is somehow entitled to whatever data it desires. And it is not just with NIIMS.
The installation of surveillance cameras, requirements to register Sim cards and the miscellaneous amendments sneaked into the Registration of Persons Act late last year, for example, arrogate to the state the right to monitor citizens’ movements, their communications and even to collect their DNA. As former Star Editor David Makali, who was recently picked to chair a task force on improving government information and public communications functions, declared on Twitter, “You are property of the State. And even if you don’t give [your personal information] out, the govt will get it, somehow.”
However, this is an inversion of the relationship described in the Constitution. It is the state that owes us information, not the other way round. It is citizens who have rights, not the government. The Constitution expressly asserts and protects both Kenyans’ rights to privacy and their right to information held by the state.
Yet there is no talk, for example, of putting up cameras in government offices and police stations so we can monitor how officials are carrying out the public’s business. Although the law requires public officials to declare their wealth, these declarations are kept secret, meaning the public has a harder time exposing cases of officials abusing their authority to enrich themselves.
After more than 16 years of advocacy and several failed attempts, in 2016 Parliament finally passed the Access to Information Act, which is meant to give effect to the constitutional guarantee of the right to information. The law requires that public bodies publish and disseminate information on their composition and operations, including salary scales and details of any contracts they have entered into.
Despite this, a survey released last month by the Commission for Administrative Justice (the Ombudsman), which is tasked with oversight and enforcement of the Act, showed that there were “low levels of compliance with the requirements of proactive disclosure of information by public entities”.
Only three per cent of the surveyed state corporations and no ministry or county government had fully complied with the requirement to disclose how they used public resources. And while most were more than happy to say who they are and their legal mandates, they were much less keen to explain how they made decisions. As the survey concluded, public institutions continue to be “largely opaque in their operations”.
There is an urgent need to strengthen the Access to Information Act and to seal loopholes that allow public bodies to evade their responsibilities to the citizenry. More than three years after it was enacted, the Information CS is yet to gazette the necessary regulations for its implementation, meaning that, according to Sandra Musoga and Churchill Ongere of Article 19, “Access is still at the discretion of the entity being requested for information, and not, as per the provisions of the Act.” The lack of such rules makes it easy for public entities to circumvent the legislation by charging exorbitant fees or citing vague exemptions such as “national security”.
Further, while the law does require public bodies to put in place procedures for citizens to make information requests, it does not impose a deadline for them to do so. This means to date, few have bothered.
As noted, the constitutional obligation is not on citizens but the state to provide the information that is the life’s blood of any democracy. This allows the people to not only participate in and monitor its operations, but also to hold officials to account. So rather than demand even more of our personal data, government should first extract the log from its own eye.