THE INTERNET AND THE CONSTITUTION: PRIVACY AND CONFIDENTIALITY


The Internet emerged as an increasingly important forum for political debate, particularly during the run-up to the August 2010 referendum in which voters approved a new constitution. Political and civic organizations used the Internet to distribute educational material such as pamphlets, videos, and statements about their positions on the draft constitution, as well as to publicize rallies related to the referendum.I will be reviewing  the different laws within the Constitution that  relate to the Internet and I will also give a comparative analysis of the old and new Constitutions in relation to the Internet

This document ratified by Kenyans at the Referendum presents a paradigm shift in ICT and also provides a basis for enactment of lacking laws such as data protection, freedom of information, privacy and consumer protection which have been blamed for drawing back the industry.

Privacy and Confidentiality

For a long time, the right to privacy had not been expressly legislated as a constitutional norm in Kenya. Save as a broad constitutional norm encompassed in the freedom from unlawful entry into one’s premises, the search and seizure of one’s property[1] and effects and freedom from interference with one’s correspondence,[2] the right to privacy was not expressly legislated as a constitutional or statutory norm in Kenya. As a corollary, there was no express constitutional right to confidentiality and the protection of personal information. Kenyan practice on the right to privacy and confidentiality was guided largely by English Common law. The rights expressed in these provisions were made subject to the standard constitutional exceptions to the enjoyment of individual rights: the interests of national defence, public order and morality, the rights of other persons and the exercise of authority by state officers.

The right to privacy as provided for in  Article 31 of the Constitution  was expanded to include the right not to have information relating to a person’s family or private affairs unnecessarily required or revealed as well as the right not to have the privacy of a person’s communications infringed.[3]This was a positive step in a digital world where interactions requiring personal data are more common than before therefore making the need for protection of the person paramount. This provision also provides a basis for the long awaited legislation on data protection as well as privacy.

As far as privacy and data protection is concerned, the new Constitution has made an emphatic break with the tradition of the repealed Constitution. Kenyans’ rights to privacy, to access to public information and the right to object to unnecessary demands for personal information has leapt out of legal obscurity to claim their place in the new bill of rights among constitutionally elite rights such as the right to life and freedom of expression.[4] In due course, Kenya’s parliament or the Judiciary should, through statutory enactments and judicial opinions, make further provisions relating to more particular aspects of data protection, such as the classes of personal information and their differential treatment and a delineation of the circumstances that would constitute a reasonable demand for or disclosure of personal information.


[1] In section 76 of the now repealed constitution it was provided that:

Except with his own consent, no person shall be subjected to the search of his person or property or the entry by others on his premises.’

[2] Section 79 provided that:

Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference
with his correspondence.’

 

[3] In the New Constitution,Article 31 provides:

Every person has the right to privacy, which includes the right not to have-

  1. their person, home or property searched;
  2. their possessions seized;
  3. information relating to their family or private affairs unnecessarily required on revealed; or
  4. the privacy of their communications infringed.

[4] See Michael Murungi, Kenya’s New Constitution Sets New Standards for Privacy and Data Protection,available at http://michaelmurungi.blogspot.com/2011/01/kenyas-new-constitution-sets-new.html (last accessed on 18/7/2011).

 

 

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