Some may have heard of the Berean Jews, who were praised by St Paul for not taking what they heard at face value, but scrutinised what was told to them and always went to confirm in their written accounts.
Increasingly, Kenyans have a striking similarity to these famed folk of yore. There is now rarely any major legislative initiative in the assemblies that will not be scrutinised by the Kenyan populace.
Enter the controversial Huduma Namba, which brought with it a lot of public outcry, from contents to process.
Through the Huduma Namba, the national government sought to establish a National Integrated Identity Management System (Niims) with the ultimate twin aim of escalating delivery of services and optimising government records.
From an aerial view, this appeared to be a well intended and noble exercise. However, let us juxtapose Niims beside the Bill of Rights, the right to privacy, under Chapter 4 of the Constitution.
The uproar is not then too surprising when one realises that, up to that point we did not have adequate data protection and privacy laws in place. There were legitimate concerns about the access to, use of, and safety of personal data, especially in an information age where data security is a major global concern.
The government did little to sensitise the public as to the infrastructure or the policies they had in place, the insufficiency of positive law notwithstanding.
Through one of their characteristic traits, Kenyans instituted court proceedings. One of these groups, the Nubian Rights Forum, petitioned the constitutional arm of High Court. The Nubians, who have a historical record of the injustices are a good case why Kenyans would be justified in having genuine concerns on how well thought out the new integrated system would be.
The court ordered that the collection of DNA, and GPS coordinates for purposes of identification, was intrusive, unnecessary, and most importantly, unconstitutional, a violation of Article 31 of the Constitution — the right to privacy.
Be that as it may, the court gave the implementation of Niims a nod, but it also pegged a condition that an appropriate and comprehensive regulatory framework must first be put in place, and thus the court vindicated the inquisitive Kenyans.
Given the foregoing, despite the challenges encountered thus far, the Niims remains a noble idea, and the government has a great opportunity to propel us forward, by recalibrating the framework behind the Huduma Namba to align with the President’s Digital Economy blueprint.
In May 2019, President Uhuru Kenyatta launched the five-pillar Kenyan Digital Economy blueprint. The first is Digital Government whose main objective is to ensure that citizens access improved services. Though not highlighted, one of the ways this can be achieved is through well regulated and carefully managed data sharing by public entities. We live in an information age and systems that use data well achieve significant value addition.
Clause 36 of the Huduma Bill, expressly restricts sharing of personal data collected under confines of the bill. The challenge is that it traps the benefits of sharing public sector data across government. Not sharing doesn’t guarantee that it will not be misused or abused.
Kenyans were insisting that the government use the data collected as stated in the bill.
Within the Commonwealth, the Irish have dealt with this challenge differently. To cure the mischief of government using public sector data outside why it was collected, Irish legislators inserted clauses that prohibit government from using the data for purposes of prevention, detection and investigation of offences under their Data Sharing & Governance Act, 2019.
Ultimately, public sector data, by definition is data held by the government to enable it achieve its obligations to the citizenry, and if there can be a better use of that resource, this should not be limited due to a lack of imagination.
A thing can be a tool or a weapon depending on how it is wielded.
Looking to another Commonwealth kin, the Australian government relied on transparency and public participation in developing their Data Sharing & Release Legislative Reforms Paper that was published in September 2019. The Australian government, as if informed by the Public Participation provisions of our Constitution, collected more than 100 submissions on data sharing legislation.
If a few key steps are taken to unlock the value of this great idea, then the benefits of data sharing by public bodies are myriad. For instance, when the Treasury is hard pressed to keep introducing painful and seemingly detrimental austerity measures, the Kenyan Digital Economy blueprint already identifies cost-cutting as one of the benefits of a digital government.
Even here, precedent has been set by another Commonwealth kin. In May 2018, the introduction of the Digital Economy Act in Scotland saw the government announce it had saved one million pounds by virtue of collaborating with Scottish local authorities.
There may not be an exact equivalence, but for sake of argument, that would translate to more than Sh130 million. Just like Australia, Scotland started the process two years prior to the promulgation of the Act, by engaging the public on how their data could be used for their benefit.
In order to step into this new frontier, sensitise Kenyans and demonstrate what measures will be put in place to ensure their data is secure and carefully managed.
The writeris data protection compliance and commercial law practitioner. Email: [email protected]