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STATE OF SURVEILLANCE IN KENYA, January 2018

Kenya

Table of contents

Introduction

Acknowledgement

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.

Right to Privacy

The constitution

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.”

Regional and international conventions

Kenya is a signatory to or has ratified a number of international conventions with privacy implications, including:

Communication Surveillance

Introduction

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.

Surveillance laws

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

Election Monitoring Report on The Situation of HRDs, Election Monitors and Journalists During the 2017 Elections in Kenya

Election Monitoring Report NCHRD-K

HRDs AND JOURNALISTS SITUATION LEADING UP TO THE 2017 GENERAL ELECTIONS

PREFACE

Elections make a fundamental contribution to democratic governance by enabling the participation of voters to select leaders to represent them within the government and ensures the responsiveness of democratic governments to the will of the people. Elections also reinforce the stability and legitimacy of the political community thus facilitating social and political integration. Participation in an election serves to underpin the rights of citizens to have their voices heard. However, this is not always attained as restrictions may be initiated to limit fundamental rights that deny citizens a free, fair, credible and peaceful election.

Election monitors and observers play an important role in enhancing the transparency and credibility of elections and democratic governance. Human Rights Defenders (that include election monitors, observers, journalists and other civil society actors) continue to be at the forefront in advancing the civil and political rights of citizens by safeguarding the right of citizens to participate in the conduct of public affairs, to vote and to be elected and access public services.

Get more information in the booklet: NCHRD-K Elections Monitoring Interim Report

Resolution on the Situation of Human Rights Defenders in Africa – ACHPR/Res. 376 (LX) 2017

Resolution-on-the-Situation-of-Human-Rights-Defenders-in-Africa

NCHRD-K 2016 ANNUAL REPORT

A WORD FROM THE EXECUTIVE DIRECTOR,  Kamau Ngugi

Every year, the National Coalition of Human Rights Defenders – Kenya joins with local and global partners to celebrate the International Human Rights Day to commemorate the United Nations General Assembly adoption of the Universal Declaration of Human Rights. A 1950 resolution (423 (V)) invited all States and interested organizations to observe 10 December of each year as Human Rights Day. The theme of International Human Rights Day 2016 was very special. It called on everyone to ‘stand up for someone’s rights today!’ This is an invitation to every individual to be a human rights defender. It is an affirmation of the critical role that human rights defenders play in the society.

Human rights defenders and Civil Societies Organizations throughout the world defend the rights of others every day at great personal costs. Being the leading human rights defenders support organization in Kenya, the National Coalition of Human Rights Defenders- Kenya (NCHRD-K) has documented stories of success of individuals and the civil society sector in the promotion and protection of human rights, but also the grim reality of repression, intimidation, physical injury, and death that are lived experiences of persons that have committed to work towards the promotion and protection of human rights and fundamental freedoms for all.

The kidnap, gruesome torture and eventual murder of human rights defender, lawyer Willy Kimani together with his client, Josephat Mwenda and taxi driver Joseph Muiruri by Administration Police officers based in Mavoko (Machakos County) in June 2016 was a chilling reminder of the risks that individuals and groups in society were faced with because of pursuing justice and defending their own and other people’s rights and fundamental freedoms. Unfortunately, this is only among the few cases that are publicized. Annually, we receive hundreds of cases where individuals that spearhead the defense of human rights at national and community level are persecuted by state and private actors.

The advocacy around the Mavoko 3 case, as is popularly known, also served as reminder to the Government that its citizens were determined to stand up to defend human rights and the constitution. There were nation-wide public protests, work boycott and collective anger demonstrated against the heinous killing that forced the state to grudgingly investigate the murders, leading to the arrest and arraignment in court of the murder suspects. This is a rare act where police conduct investigations on crime committed by a colleague. Past incidents where HRDs have lost their lives and security forces were implicated have remained inconclusive.

The relationship between HRDs and CSOs actors on the one hand and the government on the other remains tense. There was increased legal and administrative restrictions as the state failed to operationalize the Public Benefits Organisation Act (2013) but was keen to introduce retrogressive amendments to limit foreign funding to CSOs; enacted media laws (Media Council Act (2013) and Kenya Information and Communication Amendment Act (2013)) that limit media freedom through punitive fines; and enactment of Security Law (Amendment) Act (2014) that affect the realization of fundamental human rights, including the right to privacy. There has been a worrying rise in the criminalization of CSOs through propaganda and smear campaigns that characterized CSOs as unaccountable, engaged in money laundering or supportive of terrorism act, allegations that were not proven in a court of law. Additionally, there were reported cases of physical attacks, threats, arbitrary arrest and malicious prosecutions of vocal HRDs.

While such acts were bent on harassment and intimidation of HRDs, their families and citizens at large, the commitment and resilience of HRDs remained firm. With support from NCHRD-K, HRDs developed very innovative programmes that successfully supported access to justice, protection of the marginalized groups, actively challenged impunity and ensured accountability for perpetrators. A collaborative project with the Office of the High Commissioner on Human Rights documented and profiled, through film, social media and website, the successful work of human rights defenders that has touched the lives of many people at every corner of the country; while a search for the recipients of Human Rights Defender of the Year Award 2016 that was conducted by the Working Group  on Human Rights Defenders in Kenya affirmed how HRDs have overcome difficulties and sacrificed a lot to ensure that their communities were safe, and that human rights are promoted and protected at the grass root.

The NCHRD-K commits to remain innovative, support and coordinate collaboration among partners and to increase its presence at the community level. As highlighted in our Strategic Plan we will focus on building and strengthening community based protection and support networks. Our goal is to support existing networks to advance human rights defenders issues at county level, enhance their capacities to manage their security, document violations, and actively engage in joint advocacy.

The NCHRD-K has successfully offered timely intervention to HRDs at risk, coordinated joint CSO action to push back and reclaim operating spaces, build support network for HRDs at national and global level and has enhanced skills levels for HRDs in security management and documentation of violations. Our work has relied on strong and dependable network of human rights defenders, efforts of our partners, commitment of our staff and board members and the support of our funders that offered Core funding, Project funding or joint project implementation that has ensured holistic intervention for the realization of our Vision – human rights defenders working and living in a safe, secure and conducive environment.

Access the full report here: https://wp.me/aagr4K-La

Double Edged Sword:A case Digest for HRDs in Kenya (2013-2015)

DOUBLE_EDGED_SWORD_A_TRENDS_REPORT_AND_C

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