Looking Back, Forging Ahead: A Look at ICT processes, laws and policies in Kenya, 2019
By Mercy King’ori
The previous year was eventful for Kenya in terms of national processes that relied on information and communication technologies (ICTs) for their execution as well as ICT related legislation and policies that reflected this increased reliance on ICT. The two major processes included: Huduma Namba registration and the National Census. The laws and policies include the enacted Data Protection Act, proposed Social Media Bill and CCTV policy. Huduma Namba registration involved collection of personal information with the aim of issuing Kenyans and residents in Kenya with unique identifying numbers. The process leveraged on biometric technology to collect and store personal information. The use of this form of technology was a key differentiator of this civil registration process compared to others due to the nature of the information collected. The other process was the National Census. This was the first ever Census to be paperless. Enumerators were given tablets which they used to input the information they were collecting. The information was transmitted electronically. In fact, thanks to the use of ICTs, this year’s census results were released within a record two months. This is because the information was being transmitted to a single area upon collection as opposed to manual records that take time to compute.
Additionally, the legislation and policy making space generated laws and policies that would have an impact on processes that leverage on ICTs such as the Data Protection Act which has provisions on safeguarding personal information, proposed laws relating to social media platforms (amendments to Kenya Information and Communication Act known as “Social Media Bill” ) that aims to regulate the use of social media and a CCTV policy to regulate the use of CCTV cameras in Kenya. The aim has been to regulate the use of ICTs that can undeniably go rogue such as violating constitutionally guaranteed human rights.
A look at these processes, laws and policies depict a country committed to employ ICTs to promote socio-economic growth and promotion of human rights. However, a closer look also depicts growing concern on what is the actual impact of these ICT processes, laws and policies to the intended beneficiaries. With regards to processes, the concern has been whether the use of ICT is delivering any actual benefits as is usually promised during their implementation. For laws and policies, the concern has been the use of laws and policies to undermine human rights. This post seeks to delve into these processes, laws and policies that have occurred during the previous year and address any concerns identified for lessons in the coming year.
As earlier mentioned, Kenya has conducted two major national processes that incorporated the use of ICTs; Huduma Namba registration and the National Census. In many developing countries, Kenya included, the use of ICT at a national scale has usually been framed under the “ICT4D Agenda” (Information and Communication Technologies 4 Development). In this part of the world, ICTs are often heralded as solutions for alleviating poverty, improving economic development more so in recent years. ICT4D’s main tenet is the assumption that the development, diffusion, and implementation of ICTs will bring prosperity and wealth. Advocates of this agenda have a strong belief in technology as a neutral tool and as a means to leapfrog development. ICTs are viewed as independent variables capable of causing change in every domain of human life. However, glossing over these huge benefits seems to have resulted in negative consequences with countries like Kenya exemplifying the very weaknesses of the ICT4D agenda where there is an excessive and unrealistic belief that ICTs contribute to development. This has resulted in concentrating too much on the ICT and neglecting the “D” part of it.
For example, when a process such as Huduma Namba registration was being rolled out the phrase “Huduma Namba kwa Huduma Bora” i.e. “service number for good service delivery” characterised the discussion. This means that huduma number would be a gateway for much-awaited good government service delivery to citizens such as universal healthcare. The use of biometric technology to centralise the information of citizens was meant to be the differentiator of this civil registration. However, delivery of the services pursuant to this resource intensive registration seems to be in limbo with a court case still pending in court and privacy risks to the personal data collected being imminent.
Laws and Policies
There is the recent enactment of the Data Protection Act that will protect and regulate the collection and processing of personal information of Kenyans. The “Social Media Bill” was introduced to regulate the use of social media platforms in Kenya. It focuses primarily on introducing rules for bloggers, social media users and the companies providing the platforms. Prior to that there was the Huduma Namba Bill which sought to establish the National Identity Integrated Management System (NIIMS). NIIMS is set to be a national system for the registration of all citizens and foreigners resident in Kenya. Lastly, there was the CCTV policy which seeks to regulate the use of CCTV in Kenya. This policy acknowledges the proliferation of CCTVs in public and private spaces. Therefore, it recognises that there is a need to give guidance on how CCTVs can be operated in Kenya.
Undeniably, the use of technology ought to be regulated at national level to avoid rogue uses. However, a deeper look at these laws and policies from the views and concerns that were raised in public participation forums and cases in court paint a picture of laws that undermine digital and non-digital rights and freedom. The digital rights and freedoms that are under threat include: freedom of expression, right to privacy, right to access information and freedom of association. For example, the Social Media Bill raised concerns due to its grave violations of the freedom of expression that it contains such as registration of groups on social media platforms which is not plausible. The CCTV policy has been criticised for containing clauses that violate the right to privacy. Non-digital rights such as the right to citizenship were contested in court in Bills such as Huduma Namba Bill. In this Bill, Nubians who have been seeking to be recognised as Kenyans took to court to argue that the requirements of registration for Huduma Namba Bill would exclude them from the exercise as they did not have National IDs.
This lean approach to human rights as demonstrated by the laws and policies being developed brings to question what the actual purpose of legislating ICTs is and how can the legislative process ensure that ICTs are used for social good more than undermining human rights. ICTs has the potential to promote fundamental human rights if properly legislated. However, as it can be seen in Kenya, the laws and policies continue to risk the proposed efficiencies of using ICTs.
Indeed, the year was quite eventful
for the ICT space in Kenya. More use cases and laws are bound to be introduced this
year. It is a chance to pause and ponder on why we really need ICTs as a
country. If the purpose is to promote development, there needs to be less hype
and improve on how to ensure the ICTs deliver their benefits. For example, the
digital collection of census data ensured that collated and centralised is
accurate. To realise the benefits of this accuracy, there needs to be goodwill
from the government to improve planning efforts for service delivery beyond the politics. In terms of legislation, there is
a need to ensure that legislation does not make it impossible to realise the
benefits that derive from the use of ICTs. ICT law and policy making can
benefit greatly from more engagement with the intended beneficiaries at the
point of creating them. This will ensure that ICT laws and policy are not
curtailing the very use of ICTs they intend to regulate.
 Veva Leye, “Information and Communication Technologies for Development: A Critical Perspective,” Global Governance 15, no. 1 (January – March 2009): 29-36