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Proposed Kenyan Constitution and ICT Rights

THE PROPOSED CONSTITUTION of Kenya has been received with mixed reactions, with two clauses- on abortion and inclusion of Kadhi’s Courts- drawing the greatest controversy. Different groups including political lobbies, civil society and religious leaders are giving varying opinions, in favour and against the document. For the Information and Communications (ICT) rights community, this document if ratified by Kenyans at the Referendum will present not only a paradigm shift in the business but also provide a basis for enactment of lacking laws such as data protection, freedom of information, privacy and consumer protection which have been blamed for drawing back the industry.

In the proposed draft, the Bill of Rights introduces rights which were missing in the current Constitution that are important for realization of a fuller digital world. For instance, Article 46 on Consumer Rights provides for the protection of consumers from poor quality goods and services and mandates Parliament to make legislation for the realization of the same. For a long time, (ICT) consumers have been asking for the enactment of a consumer protection law to fill in the gap in consumer protection that the Communications Regulator has sometimes been unable to provide. Most recently, consumers have been calling for the lowering of Internet and other communications services at the retail level with the advent of the fibre optic cable.

Closely tied with consumer rights is the Right to Fair Administrative Action (Article 47). A modern trend in many administrative offices has been the adoption of service charters that include an open door policy where members of the public can present their grievances. However, this is a practice that depends on the goodwill of the officeholder as it is not anchored in law. Even while in the communications sector the Regulator has been generally fair in responding to consumer complaints, the law will now compel them to also be expeditious, efficient, lawful, reasonable as well as procedurally fair. This would be expected to bring an improvement in dispute resolution especially where fundamental rights and freedoms of an individual or
community are affected.

Another right introduced is Protection of the Environment (Art 42). Promoting protection of the environment to constitutional status shows the importance with which Kenyans regard the same. In the ICT sector, fears have sometimes been expressed of the latent danger posed by communications infrastructure. Affording constitutional protection to the environment means that these dangers can be determined at the highest courts in the land. For example, those who live or work very close to communication equipment may through this right demand for conclusive studies on the effect of such equipment to their health and safety.

Perhaps the biggest winner in the proposed draft is the media which has been guaranteed its freedom in Article 34. Even after liberalization of the media in the early 2000’s, the media and the Government have time and again been at loggerheads due to control issues. The proposed Constitution not only guarantees a media free from Government interference but also provides for the creation of an independent media regulator as has been the aspiration of media practitioners. The document also redefines the State broadcaster to be independent and accommodative of divergent views, a state which is important for nurturing of democracy.

Another big win is in Access to Information (Article 35). In the proposed Constitution, every citizen is guaranteed the right to information held by the State or by another person that is required for the exercise or protection of any right or fundamental freedom. The right to correction or deletion of untrue or misleading information is also assured. For a long time, civil society has been advocating for freedom of information and repeal of the Official Secrets Act. In this age, information is required for governance and citizens need not beg information holders for their right.

Freedom of Expression (Article 33) is expanded to include artistic expression as well as academic and scientific freedom. This presents a shift from the past where divergence was sometimes taken as opposition and it should create an opportunity in the ICT sector for acceptance of alternative information systems and softwares. A potential interesting debate would be where to draw the line between artistic expression and the codes required in broadcasting under the new broadcasting rules. In a society such as ours where cultures are very diverse, this may be a hard nut to crack.

The limitation in this right is that freedom of expression shall not extend to propaganda, incitement to violence, hate speech or advocacy for hatred. Kenyans who participated in online and digital hate campaigns during the 2007 General Election period should therefore be warned that should the proposed Constitution pass, such acts would be outlawed.

Another provision introduced is the Protection of Intellectual Property (Article 40 (5)). This may have been inspired by the desire of the Constitution makers to shift Kenyans into looking at other forms of property other than land, which is held in very high regard. For local innovators, software developers, performing artistes and other creatives, constitutional protection of their intellect may be a motivation for further development of their work. However, in the digital world, intellectual property norms are fast changing and those seeking constitutional protection may have to find innovative ways of effecting their rights.

The right to privacy has also been expanded to include the right not to have information relating to a person’s family or private affairs unnecessarily required or revealed as well as the right not to have the privacy of a person’s communications infringed. (Article 31) The right to privacy has traditionally involved the right not to have property searched or seized arbitrarily and the expansion of this right will provide what the long awaited data protection, privacy and confidentiality legislation may have contained. This would be a positive step in a digital world where interactions requiring personal data are more common than before therefore making the need for protection of the person paramount. This provision also provides a basis for the long awaited legislation on data protection as well as privacy.

A provision which may not be welcome by all but does not strictly deal with rights is the classification of Government. Under Article 185(1) as read with the Fourth Schedule, it is provided that the National Government will have a Transport and Communications function which will deal with the following: (a) road traffic; (b) the construction and operation of national trunk roads; (c) standards for the construction and maintenance of other roads; (d) railways; (e) pipelines; (f) marine navigation; (g) civil aviation; (h) space travel; (i) postal services; (j) telecommunications; and (k) radio and television broadcasting.

This is a much wider mandate as opposed to the current situation where there is a Ministry of Information and Communications that deals only with ICT matters. While in the past there existed a situation where the Ministry of Transport and Communications were one, the rapid growth in the ICT industry has partly been credited to the separation of these functions. If the proposed Constitution were to pass, it remains to be seen whether the structural frameworks and institutions put in place in the past few years under the Kenya ICT Policy are sufficient mechanisms to continue driving the industry even under a newfunctional Government arrangement.

Additionally, there are other general provisions that may apply to the ICT sector such as the right to a fair hearing (Article 50(1)); access to justice (Article 48) as well as the general provisions regarding the application of the bill of rights (Part 1 of Chapter Four). Others such as the freedom and security of the person,
protection from slavery and servitude as well as forced labour, freedom of association and freedom of assembly are traditional rights which have become more important in the digital world in the face of cyber crimes through which some of these freedoms are curtailed. The creation of a commission on human rights and equality (Article 59) also expands the avenues through which promotion of human rights may be monitored.

The inclusion of some of the rights discussed above such as the (expanded) right to privacy; (expanded) freedom of expression; freedom of the media; access to information ; protection of the environment; consumer rights and fair administrative action may usher in a new era in the Kenya ICT rights movement if the Proposed Constitution were to pass. Some such as access to information, and privacy would be the gains in a long journey where the movement has been advocating for these rights. From an ICT rights enthusiast’s view only, one should not be surprised if the Proposed Draft gets a yes.

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Comment by Grace Mutung'u on April 12, 2010 at 3:04pm
That's a great discussion- it once came up on ke-internet users. Either way, whether or not specific ICT rights are included, there are general human rights eg privacy, freedom of expression , media freedom etc which make ICT rights more realisable....these should definitely be included in the national Constitutions.
Comment by Mwende Njiraini on April 9, 2010 at 3:29pm
This is excellent, Bomu- IGCBP10 Africa Group A actually did have a discussion on the inclusion of the Internet-related issues in the constitution in one of our online sessions.

Participants were however divided on whether there should inclusion of internet governance -related issues in the constitution. Some argued that there was no need to include IG issues in the constitution because existing laws in most countries cover these issues. On the other hand others argued that the constitution should provide guiding principles for the development IG regulations including specific principles of ubiquitous computing and multimedia communication or general principles such as right to privacy, protection of human rights that would be universally applicable to Internet. There was also a proposal for a ‘blanket’ constitution which very country should adhere to for example under the United Nations.



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