By Jackie Akello and Jaaziyah Satar.

Kenya is set to have its sixth census since independence beginning on the night of 24^th August 2019. The 2019 census exercise will mark the first census to be conducted since the promulgation of the 2010 Constitution.[1]

A census is the total process of collecting, compiling, evaluating, analyzing, and publishing demographic, social, and/or economic data at a specified time, pertaining to all persons in a country or a well-defined part of a country.[2] Section 2 of the Statistics Act[3] defines it as a statistical operation in which all units of the population of interest are enumerated[4]. The census exercise generally entails the counting of all people in a country at a specified time.

A census is the primary source of reliable and detailed data on the size, distribution and composition of the population in a country at a specified time. The information collected when analyzed gives an accurate picture of how many people are living in the country, the distribution across every administrative level and their living conditions as well as access to basic services. This will inform planners on policy formulation and targeting of development plans. There is, therefore, need to ensure that data collected during the census exercise is in line with the objective of the census.

The significance of a census exercise is grounded in both law and development planning. It is among the distributed functions between the National Governments and the County Governments in the Fourth Schedule of the Constitution of Kenya, 2010, Part 1, Item 11. The statutory provision that supports the Constitution in this regard is the aforementioned Statistics Act.

The Act establishes the Kenya National Bureau of Statistics (KNBS) which shall be responsible for conducting the Population and Housing Census every ten years.[5] The Bureau is the principal agent of the government for collecting, analyzing and disseminating statistical data in Kenya and is tasked with the responsibility of being the custodian of official statistical information.[6]

Consequently, the Act mandates it to maintain a comprehensive and reliable national socio-economic database.[7] According to KNBS, data being collected during the census are: age, sex, marital status, births, deaths, migration, forms and severity difficulties in performing of daily activities, educational attainment, labor force particulars, access and ownership of ICT equipment and services, crop farming, livestock and aquaculture, housing characteristics and ownership of assets. This data will be captured electronically through a tablet computer loaded with the questions to be asked during the exercise.[8]

Despite the above reference by KNBS to the type of data being collated, it is important to note that the Statistics Act is silent on the kind of information to be collected during the exercise. This ultimately creates room for KNBS to decide which questions to ask during the exercise, which in turn poses a risk of the Bureau collecting information, not in line with the purpose of the exercise. For example, there have been circulated reports that the census officials will be requesting among other information;

• Whether individuals have registered for Huduma Namba;
• Identification Numbers (IDs) and Names; and
• Coordinates of an individual’s place of residence – Global Positioning System (GPS) information.

There are two salient differences between the Census and Huduma Namba: the data that is being collected; and the purpose of that data. In the census, the data being collected is mostly demographic i.e. a person’s age, sex, marital status, deaths, migration. On the other hand, while the data being collected by the Huduma Namba has some demographic elements, these are supplemented by identification data such as a person’s name and their biometrics. The purpose of conducting a census is to get population-level, statistical information that may assist the government in resource allocation and research, while the purpose of the Huduma Namba is to provide identification of persons for personal service provision and national security. These are very different purposes, and thus the data collected should be similarly different.

If the reports are true, and KNBS will indeed be collecting identification data in the census, this may amount to a contravention of the law, and certainly amounts to a violation of fundamental data protection principles. As above, a census is a purely statistical exercise carried out with the objective of ascertaining the population of a country. This, therefore, means that only demographic data should be collected as it contains a more statistical value, and no personally identifying information such as a person’s name, and ID number. Collecting a person’s identification information in this exercise may, therefore, amount to a violation of the person’s right to privacy provided in Article 31 of the Constitution and may effectively be considered an abuse of power by the Bureau.

The combination of requesting for ID numbers and the Huduma Namba registration status increases the likelihood of the government scrutinizing individuals who have not registered for Huduma Namba, despite a court order that the registration is voluntary[9]. There needs to be a clear demarcation between the two processes. Huduma Namba and the census must be treated as two separate processes and should not be linked in any way. The census exercise must be in line with its objectives and provide anonymity to individuals participating. 

Further, the collection of GPS coordinates is against the same Huduma Namba court ruling[10] which tentatively barred the government from collecting unique identifiers such as GPS information and DNA samples during the Huduma Namba registration exercise. If this information is indeed collected during the census (when viewed together with the additional identification questions), it raises questions of good faith on the part of Government, as it appears to be a means of circumventing the court ruling by collecting this information through the census.

In addition to the above concerns, with the massive amount of data being collected, the question of data protection becomes important. Concerns around measures intended to be used by the Bureau to safeguard data arise. KNBS opines that the collection of the data electronically through tablet computers guarantees data safety.[11] However, this cannot be said to be true as computers are exposed to vulnerabilities such as hacking. That notwithstanding, the data collected through the tablet computers are also exposed to risks such as unsolicited transfer to third parties.

An analysis of the Statistics Act amplifies the fact that the Act lacks sufficient provisions for data protection. The Act provides for an ‘Oath of Secrecy’ to be taken by census officials, which forbids them from divulging information collected to unauthorized persons.[12] This oath, however, can be argued to be insufficient for data protection and instead raises questions of how an oath of secrecy ensures data security and subsequently, questions on consequences of a breach of the oath. Further, the Data Protection Bill, 2019,[13] containing substantive provisions on data protection which may address any data protection gaps identified in the Statistics Act, has not been passed and is still awaiting Parliamentary debate and Presidential assent.

Section 26 (b) of the Act nonetheless, makes it an offense for an Official to divulge any information collected during the exercise to unauthorized persons with a penalty of a fine not exceeding one hundred thousand shillings or imprisonment for a term not exceeding twelve months or both. Despite this, the Act lacks operative clauses that reference cyber law related offenses, which is notable given the exercises’ use and heavy reliance on technology.

The collection of ethnic demographics, which has been a default in all Kenyan censuses may also be a cause for concern. The rationale posited for the collection of ethnographic data is that it has cultural and statistical value. This data, according to the Kenya National Bureau of Statistics is a reflection of Kenya’s cultural diversity. However, it is being collected within the Kenyan political context, where ethnicity is a central concern for the people and the political class particularly in the context of elections. In this regard, there is a risk that such information can be used to drum up ethnic-based support for politicians in the upcoming 2022 General Elections.

In conclusion, in as much as information collected during the exercise provides an accurate estimate of the population of the country and informs policy formulation and development plans, the significance of data security and privacy should not be overlooked. The Statistics Act should provide satisfactory safeguards that ensure not only data security but also uphold the right to privacy provided for by the Constitution. The Act should also pronounce itself on data to be collected during the census to prevent violation of an individual’s right to privacy and constrain any purposeful or inadvertent abuse of power by Government.

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[1] 2019 Kenya Population and Housing Census

https://www.knbs.or.ke/category/2019-census/

[2] Ibid.

[3] Statistics Act, No. 4 of 2006.

[4] Enumeration is the process of capturing census information.

[5] Section 4 (2) (d).

[6] Section 4 (1).

[7] Section 4 (1) (e).

[8] (n1)

[9] http://kenyalaw.org/caselaw/cases/view/172447/

[10] Ibid

[11] Ibid.

[12] Section 11.

[13] The Data Protection Bill, 2019 is designed to give effect to Article 31 (c) and (d) of the Constitution of Kenya, 2010 on the Right to Privacy.