How proposed Bill will allow state to intrude into Kenyans' privacy

If adopted by the National Assembly and signed into law, the proposed amendment to the Kenya Information and Communication Act will be the most draconian and intrusive laws against freedom of speech, expression, dissemination through electronic means and right to privacy yet, under the 2010 Constitution.

Although the right to privacy, expression, speech and media are not unlimited under the 2010 Constitution, Article 24 of the supreme law declares that any limitation of fundamental rights should not be unreasonable and unjustifiable in a democracy.

The Constitution protects citizens from unwarranted invasion into their privacy and decrees that the state has no legal authority to limit one’s rights in a wholesale manner that infringes on the rights of others.

In other words, before enacting a statute or regulation to limit or circumscribe rights, the state must ensure such legislation is specific and not broad and all sweeping.

The state must also consider whether there are less punitive or restrictive measures to achieve the intended purpose, before enacting a statute or creating a new crime as is the case with the proposed amendment. Beyond the proposer’s flowery justification, this is a bad law that must be thrown out.

The amendments proposed by Aldai MP Maryanne Keitany fail the proportionality test for various reasons. The amendment is packaged as seeking to enable internet subscribers or investors reap financial benefits for their labour and investment but a closer scrutiny discloses something sinister - an intention to spy on citizens and try and imprison them on the whim and basis of new spurious crimes.

For failing the constitutionality test, the proposed amendments should be withdrawn in totality because the Standing Orders of the two chambers of Parliament prohibit debate and entertainment of any motion or proceedings that is/are patently, unconstitutional.

The House Business Committee was in violation of these Standing Orders, hence the Constitution, to allow this proposal to reach this stage.

Through the proposed law changes, the state is creating a new layer of institutions and operators and legalising the use of software to surveil mail, intrude into electronic communication and decrypt any encrypted personal or corporate information.

It is not rocket science to suppose that the state has acquired or installed such surveillance technology which she seeks to legally validate and implement using these amendments.In the last few months, a salacious civil dispute in court between a private citizen and State House operatives suggests the Ruto administration has harboured such sinister intentions.

And the amendments seek to empower some larger tech or broadcast firms to spy on smaller ones. In one fell swoop, the Communication Commission of Kenya is being allocated unconstitutional power reserved for the Media Council of Kenya to superintend media breaches and electronic and broadcast content while intruding into police’s authority to investigate electronic crime.

For example every internet user, including one using a personal computer or browsing the internet in cybercafe will be required to register or own an electronic or digital signature that can be used to track him or her and which can be retrieved by the state or its agents and from which the state and its agents can track and even intercept electronic information, legally.

To achieve this goal, all internet service providers and investors in the cyber domain will be required to install new software and hardware. Such invasive software will, impact many personal equipment like cellphones and Iphones that can be classified as computers as redefined by the proposed amendments.

This so-called digital signature is the equivalent of face recognition technology used to identify tag and spy on citizens in many autocratic states and by these amendments, the state now seeks to legally, hack into your phone or computer using software without breaking the law.

If successfully enacted into law, all SIM card subscribers and broadcast licence holders might be asked to register or seek licences afresh and these licences might be denied subject to a wide and unpredictable criteria set by the Cabinet Secretary for Information.

By these amendments, one can be denied this registration for failing or refusing to supply unnecessary or intrusive information.

Traditionally, only a court order or a valid criminal investigation should allow retrieval of private data held by a service provider but under the proposed law state agents will be, legally, mandated to order or retrieve such information on their own motion or on order from the service provider.

Additionally, no court order shall be required to receive and retrieve private data for civil proceedings.