Kenya Digital Rights Landscape Report

This report introduces findings from ten digital rights landscape country reports on Kenya. They analyse how the openings and closings of online civic space affect citizens’ digital rights. They show that: (1) when civic space closes offline citizens often respond by opening civic space online; (2) when civic space opens online governments often take measures to close online space; and (3) the resulting reduction in digital rights makes it impossible to achieve the kind of inclusive governance defined in the Sustainable Development Goals (SDGs).


Introduction
This report covers political and social developments in Kenya and connects them to the situation in the technological sector, with the aim of identifying opportunities to protect digital and civil rights. Kenya is a notable case of digital uptake in the global South, with a startling increase beginning in 2007, making it one of the most digitally connected countries in Africa. Until discoveries of oil and titanium in the 2000s, the country did not have any notable natural resources and the economy depended on tourism and agriculture. After post-election violence in 2007, Kenya witnessed a dramatic uptake in digital services, including the development of mobile money and other platforms for transport, fintech, 1 tax services and so on, which resulted in an explosion in the digital sector.
Moreover, digital technology has been a major part of politics in Kenya since 2007. The so-called 'Silicon Savannah' is today a frontrunner in many aspects. It is a world leader in mobile money use (The Economist 2015) and the second-largest fintech market in Africa; and holding the second digital election in Africa, among others (Ernst & Young 2019). In 2017, Kenya conducted a much celebrated but ultimately disappointing fully digital election. Digital platforms are increasingly a part of public life in Kenya, in part because of deliberate efforts by the government, but also because of organic uptake by citizens, nudged by political and social developments (Nyabola 2018). By 2019, the country had a mobile penetration rate of 88 per cent, with most people connecting through their phones. In 2017, the Kenya National Bureau of Statistics reported that internet subscription rates grew from 29.6 per cent to 41.1 per cent in the same year (Communications Authority 2018).
In fact, the Kenyan government has so far failed to create an adequate policy and legislative framework, particularly around privacy, digital identities and general regulation. Policymaking remains a haphazard affair and the state remains on a constant collision course with activists and citizens' rights groups. Laws passed to regulate online risks are routinely used to silence critics.
In 2018, for example, the Bloggers Association of Kenya (BAKE) successfully sued to suspend 25 provisions of the Computer Misuse and Cybercrimes Act (2018) because it was unconstitutional (CIPESA 2018). The court concurred that the suspended provisions 'contravened constitutional provisions on freedom of opinion, expression, the media, security of the person, the right to privacy, the right to property and the right to a fair hearing' (ibid.). The ruling was subsequently overturned by a superior court, but has been appealed by BAKE and is pending admission by the Supreme Court. Arguably, since the change in government in 2013, the information and communications technology (ICT) policymaking space in Kenya has been characterised by a constant, high stakes push and pull between citizens and the state as the state increasingly seeks to impose itself on the sector without any perceived investment in growing it. This paper finds that Kenya's fluctuating political climate has both enabled and stifled digital rights, and that there is significant room for action from domestic and international actors to better protect these rights. It also finds that while there is significant capacity in civil society in Kenya, particularly with the advent of specialist digital rights organisations, a lot of this capacity is hampered by the lack of resources to effectively take on both the state and large multinational corporations that dominate the digital space in Africa.

Political landscape
According to human rights watchdog Freedom House, Kenya is a partially free democracy, scoring 48 out of 100 on the group's Freedom in the World rankings, although the state of freedom in the country has fluctuated significantly within the 'partially free' brackets since 2000 (Freedom House 2019; see Figures 2.1 and 2.2). Between independence in 1963 and the end of the one-party state in 1988, Kenya was ruled by two authoritarian leaders who were notorious for cracking down on political dissidents, students and organised political groups. Nor did the advent of multi-party democracy in 1988 automatically lead to democratic gains as the authoritarian regime of Daniel arap Moi, through widespread electoral violence and use of force against members of the opposition, extended its rule by another ten years. Thus, even though the country had multi-party elections in 1992 and 1997, between 2000 and 2002 Freedom House ranked Kenya as 'not free'. But this was quickly compromised by the return of past practices to limit press freedom and individual rights. The 2007 election was preceded by notable instances of media intimidation and state-led violence, while the election itself marked the worst of electoral violence, which left at least 1,500 people dead and another 100,000 displaced (Nyabola 2018).
Meanwhile, inequality in the country has increased considerably, as reflected by the annual United Nations Development Programme (UNDP) global Human Development Index and specifically the Gini coefficient. In 2005, for example, the country had a Gini coefficient of 46.5, but ten years later, the figure was 40.8 (UNDP 2019). According to international non-governmental organisation Oxfam, less than 0.1 per cent of the country's population owns more assets than the remaining 99.9 per cent, and the numbers of the super-rich in the country are growing at one of the fastest rates in the world 3 Data not available for 2010 and 2012. Year Free Partially free Not free Freedoms (Oxfam 2020). Organisations such as Oxfam argue that this significant inequality drives Kenya's high rates of crime and institutional violence. Given all this, the state in Kenya remains highly fragile, particularly in election years. Civil liberties also deteriorate considerably in the build-up to and aftermath of elections, while corruption in the country remains high.
The ushering in of a new constitution in 2010 fundamentally reorganised government, creating hundreds of new elected positions -and thereby increasing public spending -as well as new constitutional rights and freedoms. Public awareness of these new rights and freedoms generally remains low, but particularly with regards to digital rights. The government has been slow to implement the new dispensation. For example, Article 35 of the Constitution provides in part that the state shall publish any important information affecting the nation (Republic of Kenya 2010) and this creates a constitutional obligation for public participation.
Regulations based on these laws have interpreted this to mean, among other things, that the public shall be invited to participate in the processes of lawmaking through public forums, media outreach and other efforts. Yet proposed laws are rarely subjected to public scrutiny and where comments are provided, they are rarely reflected in the final draft of the law.
In 2017, four days after a peaceful August vote, the Independent Election and Boundaries Commission (IEBC) announced that the incumbent, Uhuru Kenyatta, had won the presidential election with approximately 56 per cent of the national vote (enough to avoid a run-off) (Kimutai and Okumu 2019). His main challenger, Raila Odinga, quickly filed a petition against the result and was granted a hearing before the Supreme Court (Al Jazeera 2017). On 1 September, the Supreme Court held that the presidential election had not been conducted to a constitutional standard and ordered a fresh election to be conducted within 90 days (de Freytas-Tamura 2017).
In the interim period, the IEBC struggled to demonstrate that it had addressed many of the shortcomings that had led to the dismissal of the first round of voting. The remaining uncertainty around the electoral register fuels many of the concerns in Kenya around digital privacy and data protection in elections. Elections are one of the largest data collection exercises in the country, and anxieties over how the electoral roll was built and administered underpin much of the ambivalence towards digital government.
The experience of the election affirmed that many of the anxieties were well founded. For example, concerns around OT-Morpho Safran (now known as IDEMIA), the French company that built the software that administered the election, drew parliamentary attention to data expropriation and triggered new impetus to pass a data protection law. Moreover, details of Kenya's electoral register are in the semi-public domain (i.e. they can be purchased from the IEBC for a specified fee). Any company or individual is able to purchase all or portions of the register under the current regulatory framework.
Taken together, this political context means that Kenya's digital development is constantly under threat of reprisal from an insecure administration with authoritarian tendencies, on the one hand, and a systemic lack of investment and institutional apathy triggered by corruption on the other.

Civic space landscape
Civic space in Kenya has also fluctuated widely between 2000 and 2020.
Regionally, Kenya has had a reputation for a historically strong civil society despite authoritarian regimes, shaped by notable mobilisations and mass protests such as the Saba Saba (7 July 1997) , and the continued action of civil society leaders despite significant reprisals (The Economist 1997).
Mobilisation for the end of one-party rule subsumed all other forms of organisation; and so, for example, women's rights organising has been less visible, also in part because of the co-opting of formal women's rights institutions such as Maendeleo ya Wanawake (Progress for Women).
Although there had always been multiple print media outlets, after the end of the one-party state there was also a proliferation of television and radio stations, which increased and diversified access to information. Protest actions in universities and civil society were the main way through which civic space was opened up, culminating in the end of KANU rule in 2002.
Between 2002 and 2007, the situation in Kenya oscillated between extreme opening up of civic space and rapid contraction. The first three years of the Mwai Kibaki administration saw significant gains in law, truth and reconciliation, civil society and other sectors. There was also massive expansion in media and internet communications. However, as criticism shifted towards the administration, many authoritarian practices resurfaced. For example, both the first lady and the cabinet secretary for the interior were involved in two separate and highly visible instances of press intimidation captured on camera and broadcast live (Nyabola 2018). By the 2007 election, there were significant indications that all was not well in Kenyan politics.
Between 2007 and 2013, Kenya remained in political limbo due to reconciliation efforts between the two principals who fought after the 2007 election, and the growing pressure to change the Constitution. The passing of the new Constitution inspired a new wave of activism and organising, but this was quickly curbed as anti-International Criminal Court and antiaccountability rhetoric surged (Nyabola 2018).
After the 2013 election, civic space in Kenya declined considerably. A 2014 report from the Poverty Eradication Network (PEN), a coalition of civil society actors in the country, noted: Kenyan civil society has been billed as one of the most vibrant in the region… operating in more than 26 sectors… [but is] currently facing their biggest challenge with the state trying to manipulate the regulatory laws with the purpose of controlling it.

(Keter 2014)
A 2016 Kenya Human Rights Commission report noted 'actors in the civic sector in Kenya, from donors to grassroots networks, media to workers unions all experience… attack and threats to their existence and effectiveness' (KHRC 2016). In 2018, anti-corruption watchdog Transparency International found that 368 journalists were murdered between 2012 and 2017, and out of these 70 were murdered while covering corruption stories (Nyakio 2018).
Elections are a foundational part of Kenya's civic space, as most political action even between election years is geared towards winning the subsequent vote. Since 2007, there has been a dramatic contraction in civic space due to reduced freedoms of expression, assembly, protest and other key pillars of democratic participation designed to influence electoral participation, although there have been some victories, particularly those gained through the courts. Many unconstitutional threats are usually advanced and consolidated in the interests of preserving electoral advantage. With regards to digital rights, for example, the impetus for designing governance architecture on data protection stems in part from the history of misuse of the electoral register.
On 19 December 2014, President Uhuru Kenyatta signed into law the controversial Security Laws (Amendment) Bill 2014, a day after Parliament approved the law amid nationally televised chaos involving heckling and fistfights, as some members sought to air their strong opposition to the proposal (KTN News 2014). It amended 21 laws, including the Penal Code, Criminal Procedure Code, Evidence Act, Prevention of Terrorism Act and the National Police Service Act. Critics argued that this law was a major setback for civic space in Kenya as it gave the government unprecedented powers of surveillance, arrest and detention, and to silence dissenters and critics (KHRC 2014).
In all of this, the judiciary has emerged as an inconsistent last resort for the protection of civic space. Legal challenges to legislative action have had mixed results, particularly as they pertain to digital rights. For example, in April 2019 the High Court found that the state could not make registration for the Huduma Number (Namba) digital ID system that in 2019 was abruptly announced to be mandatory as this was unconstitutional, but allowed the programme to continue pending legal determination of its constitutionality (Kakah 2019). The court also struck down 26 provisions of the Computer Misuse and Cybercrimes Bill, and while a superior court reversed this decision, an appeal was filed in the Supreme Court (Lolyne 2020). Multi-party election. First election in which the opposition defeats the incumbent.
Opens civic space to engage millions in political discourse and democratic participation.

2005
Constitutional Referendum November-December: voters reject a proposed new constitution in what is seen as a protest against President Kibaki.
Increases momentum for the opposition in the lead-up to the election; more radical constitutional proposals are protected.

2007
Contentious election leading to postelection violence.
Pushes increased uptake in mobile money and use of blogging and online platforms as the media retreat.

2010
August: new constitution designed to limit the powers of the president and devolve power to the regions approved in referendum.
Expansive Bill of Rights and explicitly states new rights that will affect the digital landscape including the right to privacy in Article 31.

2012
National Intelligence Service Act (2012). Gives security agencies powers to monitor communications but does not set out what kind of communications might be monitored or what kind of interception is permitted.

2013
Access to Information Bill (never passed). Law designed to encourage proactive disclosures by the state and its agencies, as well as creating a framework in which citizens can demand information from the government, as set out in Article 35 of the Constitution.
PBO Act (2013) passed but not implemented.
The law would provide more support for civil society organisations.
Media Law (2013). Media owners criticise the law for expanding the executive's role in media.

Kenya Information and Communications (Amendment) Act (2013).
Critics argue that it expands the executive's oversight role over the CA. The law also creates criminal penalties for what should ordinarily be civil or professional standards violations.

2014
Security Laws. Gives the country's national security organs broad, unchecked surveillance powers.

2019
Kenya Information and Communication (Amendment) Bill.
Attempts to curb criticism in online spaces; introduces heavy fines for hacking and other cybercrimes.
Data Protection Act. Creates regulatory framework for data privacy and protection.

Technology landscape
Kenya's technology landscape is characterised both by rapid advances and by a growing gap between those who have the most access to and capacity for technology, and those who have the least. Because of its reputation as the Silicon Savannah, many of the technology advances developed elsewhere for use in the developing world are tested in Kenya; for example, Google's 'internet balloons' (BBC News 2020). After several years of dramatic developments, with only marginal regulatory changes, since 2013 the government has attempted to pass a rash of measures designed to constrain behaviour on the internet, which critics argue is an indirect effort to curb freedom of expression in the country.
First, the government has frequently used legislation to try to curb online civic space, and notably avoids meaningful public participation on contentious legislation. As such, legislation in the digital space is frequently subject to litigation by interested parties, owing to the government's failure to consult the public and to respond adequately to social challenges. The case of the Huduma Namba digital identity initiative points out the significant ways in which the government is failing to adhere to constitutional standards and creating a climate where trust in digital technology becomes increasingly elusive. The cabinet secretary for the interior abruptly announced in February 2019 that everyone over the age of six who was resident in Kenya had 30 days to register for the new digital ID system, but there was no effective public participation in the design or implementation plan for the initiative. As such, civil society leaders sued the government over the implementation of the programme, culminating in a stop order against the ministry (Privacy International 2020).
On 11 August 2017, Kenya held the first of two rounds of what would be one of the most contested elections in the country. Prior to the vote, there were queries about the methods by which French company OT-Morpho Safran had been contracted to build the electoral database -queries that were not addressed before election day (Nyamori 2019). This was also nominally the country's first fully digital election and the second digital election in Africa. The digital process involved the deployment of electronic voter identification, biometric voter registration, electronic results transmission, and other computerised standards. However, instead of a fully digital process, two weeks before the vote the IEBC declared that voting in at least one-third of polling stations would be analogue (Menya 2017).
Surveillance and lack of privacy remain key threats to civil rights in Kenya, with international governments such as the US and China providing funding and hardware for an elaborate surveillance network in the country (Kapiyo and Gathaiga 2014). Given Kenya's experience of terrorism, there has been and will likely continue to be resistance to creating a legal framework that obscures the state's ability to intercept, collect and process citizens' data.
Much of the justification for the elaborate surveillance regime is that it helps the country address terrorism, but human rights defenders have raised the alarm that Kenya's surveillance architecture is part of a broader threat to freedom of association and to critics of the state (PBI 2012).
In fact, state-led efforts at data collection have only grown more intense, including the Huduma Namba initiative to create a centralised database of citizen information and supplant the national ID cards envisioned in the Registration of Persons (Amendment) Act (2009) (Government of Kenya 2019). Abruptly announced in February 2019, the Huduma Namba initiative was the culmination of a multi-year initiative to reform and then digitise identity systems in the country. The government estimated that the project would cost between $5m and $6m and promised it would streamline service provision (Nyawira 2019). Critics of this initiative pointed out that without a data protection law, the Huduma Namba project posed major human rights challenges, including hardening identity discrimination against minority groups and allowing for the unchecked collection, processing and commercialisation of citizen data (Yousuf 2019).
Evidently, corporations are part of the tension around data privacy and protection in Kenya. Safaricom, the largest telecommunications company in the country and a provider of multiple data-rich services, has been implicated in numerous violations of rights to privacy and protections from surveillance in Kenya (Privacy International 2017). Given its size and domination of the communications landscape, coupled with the government's 35 per cent shareholding in the corporation, legal policy in communications is often built around protecting Safaricom; for example, the state regulator of corporations refused to declare the corporation dominant and therefore subject to a separate regulatory regime from other mobile companies (Mwita 2019). But foreign companies are also part of the mix; OT-Morpho Safran has received two high-profile, irregularly allocated tenders to build technology for a digital ID system and for the 2017 election, while Chinese hardware giant Huawei, has built the country's surveillance architecture. Significant boost in internet speeds in the country, which stimulates more digital connectivity.

2013
Launch of the Integrated Financial Management Information System (IFMIS).
Designed to stimulate open governance/digital governance systems.
General election in Kenya; Cambridge Analytica contracted by the Jubilee Alliance.

2016
First IFMIS scandal revealed, involving the National Youth Service, in which just under $8m was misappropriated from the Ministry of Devolution.

2017
Controversial fully digital election.

Digital rights landscape
There is more capacity to respond to digital rights threats in Kenya than in many similarly situated countries around the world, but there is still a significant gap between where the country is and where it should be.
Similarly, there are a growing number of specialist organisations responding to digital rights, but for the most part, the work of defending digital rights has fallen to non-specialist human rights organisations with limited internal capacity to respond to rapidly emerging threats.
Key civil society actors working explicitly on digital rights include the Bloggers Association of Kenya (BAKE), which has been the national leader in civil and constitutional litigation on digital rights in the country. The Lawyers Hub, a private corporation focusing on the legal aspects of the digital landscape has also developed a robust advocacy arm and is looking to expand into research and activism. The Centre for Intellectual Property and Information Technology Law (CIPIT) at Strathmore University also provides significant academic capacity for digital rights activism through research and publications.
Other less specialist organisations moving into digital rights advocacy include the Katiba Institute, which specialises in constitutional litigation and led the case on the Huduma Namba initiative alongside the Nubian Rights Forum. Amnesty International Kenya has also developed a digital rights advocacy strategy, as has Mzalendo, a civil society organisation that focuses on legislative monitoring and tracking of parliament. Regionally, the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) also has a researcher based in Nairobi and regularly contributes to conversations on digital rights in the country. International actors such as Privacy International and Article 19 are also active in the digital rights space in Kenya.
Key state actors in the digital rights space include the Ministry of Information and Communications Technology, currently led by Cabinet Secretary Joe Mucheru. The ministry develops government policy and governmentsponsored litigation, as well as representing Kenya in international negotiations with ICT companies. The Communications Authority (CA) is also a key actor in the space. It primarily provides licensing and regulation, but through laws pertaining to the governance of broadcast signals also has the capacity to switch media on and off as directed by the government. The CA also oversees the licensing and regulation of telecommunications company and manages Kenya's fibre-optic network. Finally, the Office of the Attorney General oversees litigation on behalf of the government.
Major private sector actors touching on digital rights in Kenya include a network of hubs inspired by the iHub, a space for technology enthusiasts and makers founded on the success of Ushahidi. Similar hubs such as Nairobi Garage, Metta and Lawyers Hub have become meeting points for those thinking about and working on digital issues in the country. Funders also play a pivotal role in the landscape through their convening power, including Luminate, Open Society Initiative for East Africa (OSIEA), the Open Society Foundation's Justice Initiative and the Ford Foundation. Other related players include independent digital media (The Elephant, Africa Uncensored) and data visualisation firm Odipo Dev.
Still, a great deal of organising around digital rights in Kenya occurs around hashtags and spontaneous citizen mobilisations on WhatsApp and other platforms. Similarly, because most of the space for pushback against state overreach exists purely online and in the courts, much of the organisation and mobilisation happens in courts and around legal and technical action.

Conclusion and recommendations
Developments in Kenya's digital space have greatly outpaced developments in digital rights advocacy and protection. There must be a concerted effort to support organisations active in this space, and those active in human rights in general, to develop a digital rights consciousness and encourage activism. These recommendations are premised on strengthening the capacity of local organisations to respond to ongoing changes at a reasonable pace, and empower communities to advocate for these rights themselves.
-For civil society: increase South-South partnerships in digital rights advocacy given that many of the initiatives rolled out in Kenya are first piloted in other countries of the global South such as India and Brazil.
-Encourage demands for transparency and accountability from technology companies working in the region to allow for public scrutiny of their contracts and agreements with the government.
-For universities and knowledge sectors: push for investment in research and research partnerships between academic institutions in Kenya and those in other parts of Africa and the world to deepen knowledge on digital rights in the region.
• Deepen technical knowledge on collecting and analysing information on automated political campaigning and the influence economy.
• Develop permanent research chairs and positions on digital rights and the digital economy.
-For government: invest in local language initiatives to translate digital rights language into locally useful terms.