The right to privacy is a fundamental right protected in law across the world including Kenya as
stipulated in the Bill of Rights in the 2010 Constitution. It is essential to the protection of human dignity
and serves as the foundation upon which many other rights are built. Privacy denotes “that area of
individual autonomy in which human beings strive to achieve self realization … alone or together
Human rights work demands use of communication tools ranging from face-to-face, telephones
and e-mails and short message services (SMS). All these provide varied degrees of risk, which are
also specific to the work the HRDs are engaged in, as well as contexts. Numerous Kenyan HRDs have
raised concerns about their mobile phones being tapped and their communication intercepted.
These experiences have implications for HRDs and, therefore, it is essential to ensure that HRDs are
not the subject of unlawful surveillance practices and that they are able to do their work without
fear of snooping by anyone.
This report analyses the needs, concerns and areas of interest for HRDs in relation to privacy, data
protection and communications surveillance. It also establishes how surveillance impacts HRDs work
and their role as actors of change in society. Examining the risk levels based on these specifics as
well as finding the best-suited measures will be important for continued HRDs protection.
This survey set out to:
• Assess HRDs’ level of exposure, understanding, and perception of communication surveillance;
• Document HRDs’ current strategies for mitigating, perceived or actual communication
See the Fact Sheet of the Research here: https://wp.me/aagr4K-NA
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The Sengwer are a minority and marginalized hunter-gatherer indigenous community who occupy
present-day West Pokot, Trans-Nzoia, and Elgeyo Marakwet Counties. Over the years, the Kenyan
government, through the Kenya Forest Service (KFS) and other security agencies has made
attempts to evict the indigenous group from their land in Embobut forest under the guise of forest
conservation. These forceful evictions intensified in Embobut forest in December 2017. The Sengwer
homes were torched, crops and household items destroyed and their livestock disappeared. The
Sengwer community, particularly women, cried for help that hardly came.
These forceful evictions are human rights violations of the Sengwer as well as an infringement of
their rights to customary sustainable utilization of forest resources. In addition, the evictions deprive
the community the means of subsistence, integral to their identity, cultural survival, and forest life. It
is important to note that Article 63 of Kenya Constitution 2010 prescribes that an indigenous group
cannot be evicted from their ancestral territory without their Free, Prior and Informed Consent (FPIC).
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Based on key findings, some issues emerged in the report. First, majority of the Human Rights Defenders (HRDs) in Nairobi County have tertiary education, most are engaged in self- employment, and 80% are affiliated to organisation which are pro-human rights defenders and 69% do not have regular income.
Secondly, the work of human rights defenders is important to promote and protect human rights and the rule of law. This can be achieved through regular training on the rights of HRDs. The report identified that 85% of the human rights defenders need support on human rights and advocacy, support further training on human rights, support on
self-care, support on medical care and employment opportunities.
Finally, there is need for National Coalition of Human Rights Defenders-Kenya and other stake holders to organize regular human rights training workshops for HRDs. Training for human rights defenders should include training on professionalizing their work as well as on relevant security precautions.Training should involve capacity building that equip human rights defenders with practical knowledge and skills that can enable them acquire gainful employment besides being human rights defenders. Training on practical skills like report writing, data entry technique and analysis, investigative research are recommended.
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This report covers an eventful period in the history of defending human rights defenders in Kenya. The country went through general elections in the year and characteristically, the divisive campaigns contaminated the operational environment of the country’s CSOs and HRDs. The work of the NCHRD K was therefore very much linked to the elections. Subsequently, the advocacy and protection programmes of the NCHRD K asserted the centrality of HRD actors as election monitors, repositioning the place of human rights defenders in the election process. Activities through the year emphasized the protection of conducive environment for the work of HRDs as well as the protection of individual HRDs most at risk.
During the year, NCHRD-K put in place a comprehensive programme to manage risks to human rights defenders in the country. Together with partners, the NCHRD-K built an early warning scenario building and strategy group that regularly assessed risks for human rights monitors. Response interventions were then designed within informed parameters. The NCHRD-K deployed about 102 monitors from all the 47 counties and HRD groups at risk such as sexual minority groups, journalists, bloggers and indigenous peoples to take part in monitoring the elections. Wherever risks to the monitors were reported, the NCHRD-K took rapid measures to manage them. The reports of the monitors were publicly shared with duty bearers who came under pressure to respond to things requiring their attention in line with commitments reached in the partnership built with the NCHRD K in the preparatory meetings leading to the process.
The NCHRD-K built a strong, secure and effective team of country wide monitors, equipped through a comprehensive training program to monitor, document and report on human rights violations during Elections 2017. As a result, there were robust human rights based monitors in the elections team in the particular process. In part, the high-quality information and reports of HRD monitors involved in the elections were critical in ensuing electoral petition following the announcement of the presidential election results. Aspects of the observation endorsed the Supreme Court decision to cancel the results for irregularities and illegalities noted in the process. Significantly, observation of human rights in the election process became part of the ventilations in the petitions in which HRDs directly took part. The success attained in monitoring the elections is discussed further in this report.
Going by the incidence reports to NCHRD K, risks faced by individual HRDs and organizations increased in the reporting year. The NCHRD-K working with its partners, particularly the Protection Working Group and the Human Rights Defenders Working Group managed to better clarify the priorities and build a coherent program to respond to the environment. As such, the mandate of the organization to carry out protection of HRDs at risk was conducted with remarkable success, even as human rights faced a tempestuous moment in the backdrop of the elections.
ACCESS THE FULL REPORT HERE: https://hrdcoalition.org/wp-content/uploads/2018/10/NCHRD-K-Annual-Report-2017-.pdf
The State of Privacy in Kenya is the result of an ongoing collaboration by Privacy International and the National Coalition of Human Rights Defenders – Kenya.
Key Privacy Facts
1. Constitutional privacy protections: Article 31 of the Kenyan Constitution specifically protects the right to privacy.
2. Data protection law: Kenya does not currently have specific data protection legislation. However, a Data Protection bill was tabled in Parliament in 2015.
3. Data protection agency: Kenya does not have a specific data protection authority.
4. Recent scandals: Kenyan and international civil society groups report high levels of extrajudicial surveillance.
5. ID regime: The Integrated Population Registration System (IPRS) collects data from a dozen databases held by various government agencies.
Article 31 of the Constitution specifically protects the right to privacy. It states:
“Every person has the right to privacy, which includes the right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.”
Furthermore, Article 2 states that Kenya’s international obligations, such as its commitment to the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, which include privacy rights, are part of Kenyan domestic law. It states:
“(5) The general rules of international law shall form part of the law of Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”
Kenya is a signatory to or has ratified a number of international conventions with privacy implications, including:
The Communications Authority of Kenya (CA) regulates the telecommunications industry and collects statistics on the sector. Mobile penetration was recorded at 86.2 % in March 2017, with 39.1 million mobile subscriptions. There were an estimated 40.59 million internet users in Kenya in March 2017, representing an internet penetration rate of 89.4% according to the CA.
Social media is widely used in Kenya. Kenya is reported to have over 5 million active daily Facebook users, and 693,000 confirmed active users on Twitter, according to a study by Ogilvy, an advertising and public relations firm.
The Kenya Information and Communications Act (2009), penalises the unlawful interception of communications by service providers. Article 31 states:
“A licensed telecommunication operator who otherwise than in the course of his business—
(a) intercepts a message sent through a licensed telecommunication system; or
(b) discloses to any person the contents of a message intercepted under paragraph ; or
(c) discloses to any person the contents of any statement or account specifying the telecommunication services provided by means of that statement or account, commits an offence and shall be liable on conviction to a fine not exceeding three hundred thousand shillings or, to imprisonment for a term not exceeding three years, or to both.”
Article 83 states:
“(1) Subject to subsection (3), any person who by any means knowingly:—
(a) secures access to any computer system for the purpose of obtaining, directly or indirectly, any computer service;
(b) intercepts or causes to be intercepted, directly or indirectly, any function of, or any data within a computer system, shall commit an offence.”
Article 93 (1) states:
“No information with respect to any particular business which—
(a) has been obtained under or by virtue of the provisions of this Act; and
(b) relates to the private affairs of any individual or to any particular business,
shall, during the lifetime of that individual or so long as that business continues to be carried on be disclosed by the Commission or by any other person without the consent of that individual or the person for the time being carrying on that business.”
Read the full report here: https://privacyinternational.org/node/1005