New Law Holds Promise for Improved Data Governance in Kenya

By CIPESA Writer |

Following a seven-year, windy journey, on November 8, 2019, Kenya got a data protection law. The Data Protection Act, 2019 has various positive elements and can go a long way in addressing the live issues in protecting the privacy of data in Kenya.

The law came at a time of widespread concern about privacy in the country, including the fragmented oversight over privacy and data protection; increased mass data collection programmes by the government; enhanced state surveillance capacity; rampant privacy breaches including by business entities; limited dispute resolution mechanisms and the deficiency of remedies in case of breach of privacy.

The new law provides a comprehensive framework to regulate the processing of personal data and the protection of individuals’ privacy. It consolidates the law on privacy in the country and articulates several principles of personal data protection, as the minimum standard which all data controllers or processors must abide by.

Further, the Act provides for autonomy of the data subject over their data. It defines what constitutes consent, and makes the requirement of consent mandatory. This potentially addresses situations where personal data is collected arbitrarily and without the explicit consent of users. The law also prohibits the use of personal data for commercial purposes without the consent of the data subject. It places the burden of proof for establishing a data subject’s consent on the data controller or processor, while allowing the subject to withdraw consent at any time.

Also key is that the Data Protection Act, 2019 amends other legislation that have an impact on privacy, meaning that institutions responsible for handling the registration of individuals at birth and death, issuance of national identity cards and passports, Huduma Namba registration, registration of students at all levels, and the registration of telecommunication services consumers, will need to review their current policies, practices and procedures to ensure compliance with the principles in the Act.

The law establishes an independent office of the Data Protection Commissioner. Hitherto, the lack of an oversight body and the fragmented oversight over privacy in the country meant that every institution collecting personal data “owned” and used such data as they wished.

However, whereas the Act hold much promise for improved personal data governance in Kenya, state agencies, including the communications regulator, as well private actors and civil society all have a role to play in its implementation.

This brief recounts Kenya’s journey and efforts to develop a data protection law. It also provides an overview of the implication of the new law to the protection of privacy and data rights in the East African country.

Silent No More! Africa’s Feminist Voices Are Growing Louder

By Juliet Nanfuka |
In much of Africa, feminism is often incorrectly considered a new movement. However, the reality is that feminism in the continent has played a role in shaping social and cultural relations, as well as policy and business development around the continent for decades. It is perhaps the increased vibrancy of feminist narratives in the African digital sphere that has led many to assume its novelty. The difference, however, is that the use of digital technologies has enabled the feminist voice to become more visible, even blatant, unapologetic in the push back against deep-seated patriarchal social mores.
Socialisation practices have seen girls and women expected to be “obedient”, with this often expected to be the order in the home, school, public spaces, workplace as well as online. Women who challenge this narrative have often been and continue to be branded negatively due to their rejection of this patriarchal order.

Watch FIFAfrica19 session: End of Politeness: African Feminist Movements and Digital Voice

According to the International Telecommunications Union (ITU), in all regions of the world, more men than women use the internet with the largest gender digital divide found in developing countries. This supports a 2015 research by the World Web Foundation which found that women in urban poor communities in countries such as Cameroon, Egypt, Kenya, Mozambique, Nigeria, and Uganda were 50% less likely to use the internet than men.
Sub-Saharan Africa continues to face inequalities which reflect the disparities present in basic access to education and finance, among other rights. These are compounded by the overt sexualisation of girls and women in media and popular culture, the exclusion of women from positions of power in numerous fields including in politics and business through to policy making and technology development.
While existing inequalities are rooted in tradition and social mores, many more are maintained by religious and educational institutions and in some instances reinforced by outdated national laws. These structures of inequality were among the issues discussed at the Forum on Internet Freedom in Africa (FIFAfrica) 2019 during sessions on feminism in Africa and women’s digital leadership. In one of the sessions, it was it was reported that in Malawi, women’s participation in protest can lead to persecution as was the case for Beatrice Mateyo, Executive Director of the Coalition for the Empowerment of Women and Girls (CEWAG) who was arrested and charged with “offensive behaviour to the modesty of a woman or intent to insult the modesty of a woman” in September 2017 for carrying placards during an anti-violence protest with the handwritten Chichewa words “kubadwa ndi nyini si tchimo” (to be born with a vagina is not a crime/sin) and “my pussy my pride”.
Panelists also noted the experiences of women in Sudan, who remain policed through Section 234 of the Penal Code and have been publicly flogged for “indecent dressing” and for “being vocal in public.” The section states, “Whoever to the annoyance of others does any obscene or indecent act in a public place, commits an offence and shall on conviction, be punished with imprisonment for a term not exceeding two years or with fine or with both.”
These various forms of repression against women have been transferred online, but it is also online that the pushback against them has gained momentum and increased amplification. There is increased local content generation on the systems that have fueled and shaped gender and sexual identity based inequalities. Further, online campaigns and movements such as the #TakeBackTheTech, #FeministInternet, #BringBackOurGirls and #MeToo have contributed to a shift in how feminism, gender roles and perceptions are understood and interpreted.
However, many feminist commentators and content creators online, particularly on social media, have been met with hostility in the form of trolling, personal attacks, threats of violence and more, often disproportionately to other users, as a consequence of expressing feminist views. Frequently attacked are women in politics, journalism, business, sexual minorities, as well as those making commentary on sexual minorities, and In some cases, unsuspecting girls and women whose images are shared online for ridicule and shaming.
While some have been forced offline as a result of the backlash, others have opted to face critics through practicing “radical rudeness” which challenges the established social expectations of women online and offline. The most recent notable case of radical rudeness is that of Ugandan academic Dr. Stella Nyanzi, whose campaign for improved service delivery resulted in her incarceration for insulting the president under the Computer Misuse Act, 2011.
At FIFAfrica, panelists called for increased solidarity in movements which support feminism and equality. Among the recommendations that emerged from the discussions is the need for increased advocacy on feminism and women’s rights online alongside more public initiated campaigns online and offline which amplify where policy and public positions should be with regards to the promotion of women’s rights. The widespread online amplification of issues is increasingly being used as a tool in advancing awareness on the need to maintain a feminist voice online. Panelists also noted the need for more use of popular culture including various mediums in art and design, literature, social media as well as poetry and theatre to highlight the shifting voice of African feminism. However, they noted the need to remain steadfast amidst the continued pushback against women’s rights and equality in society both online and offline.

Call for Applications: Round Two of the Africa Digital Rights Fund (ADRF)

Call for Applications |
The Collaboration on International ICT Policy for East and Southern Africa (CIPESA) is pleased to invite applications for round two of the Africa Digital Rights Fund (ADRF).
Launched in April 2019, the ADRF responds to rising digital rights violations such as arrests and intimidation of internet users, network shutdowns, and a proliferation of laws and regulations that hamper internet access and affordability. It offers flexible and rapid response grants to select initiatives in Africa to implement activities that advance digital rights and the potential of technology to uphold human rights, advance democratic governance or drive innovation.
In the inaugural round of ADRF, initiatives with activities spanning 16 African countries received a total of USD 65,000.
In round two, the ADRF seeks to support initiatives in various thematic areas, including but not limited to the following:

  • Access and affordability
  • Access to Information
  • Cybercrime
  • Data protection and privacy
  • Digital economy
  • Digital Identity (ID)
  • Digital security
  • Diversity and inclusion
  • eGovernance
  • Freedom of expression
  • Hate speech
  • Innovation for democratic participation, transparency and accountability (civic and social tech)
  • Misinformation/Disinformation
  • Network disruptions
  • Strategic litigation
  • Surveillance

Grant amounts range between USD 1,000 and USD 20,000, depending on the need and scope of the proposed intervention. The ADRF strongly encourages cost-sharing. The grant period will not exceed 10 months. It is anticipated that around 15 grants will be awarded in this round.
Together with the inaugural winners, round two grantees will be eligible for technical and institutional capacity building, including on data literacy and advocacy skills through the Data4Change initiative. As such, applicants are encouraged to identify existing data sets or indicate willingness to collect and collate data as may be relevant to the proposed initiatives.
The deadline for submissions is Friday December 6, 2019. Read more about the Fund and round two guidelines here.  The application form can be accessed here.

Nigeria Fails to Guarantee Human Rights for Marginalised Groups

By Babatunde Okunoye and Ashnah Kalemera |

With a population of over 190 million, Nigeria is Africa’s largest telecommunications market, boasting more telephone and internet users than any other country on the continent. Over the past 20 years, the country has transitioned from a military regime to a relative democracy, albeit with human rights challenges,  especially for marginalised populations and increasingly, in the online sphere.

With an internet penetration of 27%, millions of Nigerians have flocked online to communicate and express themselves in ways not possible during the decades of military rule. The internet and social media have become effective vehicles for channelling citizens’ criticism of government, and have also enabled journalists to quickly report and disseminate stories on corruption and poor service delivery.

However, the vigorous online activity of Nigerians has been met with stiff resistance from the political elite. Although sections 38 and 39 of the Nigerian Constitution guarantee freedom of thought and expression, a number of laws restrict free speech. Among them is the 2015 Cybercrime (Prohibition, Prevent) Act. Section 24 of this law which speaks to cyber-stalking is a major instrument for the prosecution of bloggers, journalists and critical voices online.

Similarly, sections 52 and 60 (chap. 7) of the Criminal Code provide that slander, libel and defamation are criminal offences punishable by imprisonment. Accusations of libel are used by state authorities against journalists and bloggers for critical or “negative” reporting. Meanwhile, although the Constitution guarantees the privacy of citizens’ correspondence, Nigeria has no specific legislation that protects data privacy of citizens offline and online.

As a United Nations (UN) member state, Nigeria underwent the third cycle human rights assessment under the Universal Periodic Review (UPR) mechanism during the 31st session of the Human Rights Council in November 2018. In its national report, the Nigeria delegation noted the development of a Cyber Security Strategy with key components on data protection and privacy. It added that the country was in the process of finalising a national action plan on business and human rights “in response to the call by the United Nations to address the negative impact of business on human rights.”

During the session, Nigeria went on to receive a total of 290 recommendations regarding human rights protection at legal and institutional level. Whereas digital rights including the right to privacy and the right to freedom of opinion and expression online were not reflected in the recommendations made to Nigeria, five from Australia, Italy, Canada, Ireland and Chile relating to freedom of association, expression, and privacy are implicitly relevant to the online sphere. Nigeria also received up to 14 recommendations on equality and non-discrimination, with regards to women and sexual minorities, which are relevant to internet freedom.

These recommendations echoed those in previous reviews  that remained largely unimplemented, with the internet freedom landscape characterised by censorship, arbitrary detentions and arrests of journalists, bloggers and citizens for comments made online. Obtaining access to public information also remained a challenge, as did access and affordability to the internet. Read more about UPR and internet Freedom in Nigeria under cycle one and two and recommendations submitted  by the Collaboration on International ICT Policy for East and Southern Africa (CIPESA), Small Media, and Paradigm Initiative

In March 2019, Nigeria went on to accept 240 of the 290 recommendations. It is reported that the Nigerian delegation stated that they did not support recommendations on rights of sexual minorities, on the grounds of being “against national values”. Provisions under section 4 of the Same Sex Marriage Prohibition Act prohibit the “registration of gay clubs, societies and organisations” as well as “the public show of same sex amorous relationship directly or indirectly”. If found guilty, the penalty is 10 years imprisonment.

As internet freedom advocacy in Nigeria continues, including via the push to pass the revised Digital Rights and Freedom Bill, and implementation of the recommendations from the 31st session of the Human Rights Council in preparation for Nigeria’s next UPR in November 2023, it is imperative that efforts emphasise the need for freedom of opinion, expression, association and assembly, online and offline, to be realised for all segments of society – including religious, ethnic and sexual minorities.

Call For Proposals: Operations, Strategic Communication and Capacity Building Support for the African Internet Rights Alliance (AIRA)

Call for Proposals |
The African Internet Rights Alliance (AIRA) – an alliance of ten civil society organizations based in Uganda, Nigeria, Kenya, South Africa and Senegal – are pleased to issue this open call for proposals for a consultancy to support the operation, strategic planning and communications capacity building of the Alliance. Members of the Alliance agree to work in collaboration with each other to advance a positive environment around Digital Rights on the African continent within the next three to five years.
Further information on the call can be found here.