A COMMENTARY ON KENYA’S DRAFT NATIONAL CCTV POLICY
By Jentrix Wanyama & Jaaziyah Sataar
A closed-circuit television (CCTV) is a type of television system that enables surveillance by transmitting its signals only to the screens that are directly connected to it. Use of CCTVs boosts security efforts by making it possible for owners to monitor their premises. However, caution ought to be taken to avoid using CCTVs for illegal surveillance.
The government has embarked on a process of regulating the use of CCTVs in Kenya. A step taken is the drafting of a national CCTV policy (available here). In its preamble, the policy states that Kenya has faced grave security threats over the past thirty years and as a result, there has been an increase in CCTV installations. Further, the policy notes that the installations have been ‘ad hoc’ and ‘disjointed.’ The policy is presumably meant to provide some uniformity. The objective of the proposed policy is to ‘guide installation, operation and management of all CCTV systems in public and private premises while promoting their use as a mechanism to deter, detect and prevent crime for a safe and secure nation.’
The Ministry of Interior and Coordination recently called for comments on the policy, a process CIPIT participated in. Below, we highlight concerns that we raised in our submission.
Certain provisions disproportionately limit the right to privacy.
The right to privacy is protected under Article 31 of the Kenyan Constitution. Though the right to privacy is not absolute, any limitation should follow the guidelines provided in Article 24. Article 24 embodies what is known as the ‘proportionality’ or ‘reasonableness’ standard. In Okiya Omtatah Okoiti v Communication Authority of Kenya & 8 othersthe court held that where a right is limited, the means applied must be ‘rationally connected to the objective being sought… and impair as little as possible the right or freedom in question.’
The legitimate aim being pursued by the policy is national security. The means applied however, do not all seem to be rationally connected to ensuring national security, and neither do they impair privacy in the least way possible. To begin with, Clause 4.1 of the Draft Policy states that it applies to all CCTVs, both private and public. This is problematic seeing as not all CCTV installations may be geared toward national security, especially in the private sphere where they are often used for domestic needs such as watching over children. For instance, the reader may recall several instances where CCTVs popularly known as nanny cams, have brought to fore child abuse by caregivers.
Further, Clause 5.5 provides for liaison between all CCTV systems and law enforcement agencies who, according to Clause 8.5, should be granted access, connection and interrogation mechanisms. Clause 8.3 also directs that all CCTV owners maintain documentation detailing their cite plans showing CCTV placement. These measures give law enforcement unfettered access to CCTVs, as there are no guidelines given as to when such access may or may not be granted. The requirement that cite plans be maintained and shared is also intrusive, especially for private owners.
The policy requires all businesses and premises within public areas to have CCTVs. Kenya has a variety of businesses ranging from informal establishes, (known as jua kali) to small and medium enterprises and big corporations. Given the disparity between different businesses in the country, it may not be able for many to meet the compliance cost of installing and maintaining CCTVs in their premises- nor equitable to require them to.
The policy directs that “public areas” and “restricted areas” be surveilled, but does not elaborate on what these terms mean in this context. These may lead to instances where surveillance is occurring in areas that were not envisioned, or the reverse. The policy also mentions that CCTVs should be operated in a way that upholds “civil rights”, but does not state any specific rights that are in danger of being interfered with. Further, the policy states that CCTVs should be availed to law enforcement where it is reasonably expected that this will assist in criminal investigations or prosecution, but gives no further details as to which offences may warrant this treatment. This leaves room for abuse and arbitrariness.
In Katiba Institute & 3 others v Arttoney General & 2 others, the court said of vague legal provisions: A provision is said to be vague and or ambiguous when the average citizen is unable to know what is regulated and the manner of that regulation; or, where the provision is capable of eliciting different interpretations and different results. Such a provision would not meet constitutional quality.
CCTV and evidence law
Though CCTVs can be a useful tool in the investigation and prosecution of criminal offences, there have been instances where police officers involved in cases with CCTV evidence have failed to handle the evidence in as required by law, rendering the evidence inadmissible. For instance, in Republic v Barisa Wayu Mataguda  eKLR, the witnesses failed to comply with section 106 of the Evidence Act and therefore the evidence was not admitted by court. It is therefore important for police officers to be equipped in handling CCTV evidence, and the policy should codify this need by requiring the National Police Service to train its officers on this matter.
A government policy can be defined as “a principle or course of action proposed or implemented by a governing body.” Article 24 of the Kenyan Constitution talks about how rights and fundamental freedoms will not be limited except by law and the limitation must be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”
The question we must ask ourselves is whether the CCTV policy not only places undue limitation on privacy, but also does so while not being a law in the first place, as this is not a piece of legislation.