Kenya: National Census in 2019 and Inadequate Protection of Personal Information

​published on November 21, 2018 / reading time approx. 5 minutes

 

The National Treasury and Planning CS, Henry Rotich, has gazetted Kenya’s 2019 National Population and Housing Census date, referred to as the ‘census reference night’ as commencing midnight 24/25 August 2019.

 


The Legal Notice 205 published on 13 November 2018, the CS issued The Statistics (Census of Population) Order 2018 setting out the date the Census will be conducted, details of disclosures to be made and collected, and the date the tally shall be completed, that is 31 August 2019.

 
The Census Order prescribes the information to be collected in respect of all persons in a household. This information will be name, relationship to reference person in the household, sex, age, ethnicity or nationality, religion, marital status, place of birth, place of residence in August 2019 for the main census, duration of residence in the county of enumeration, reasons for moving to the current county of residence, orphan-hood status and albinism.

 
Additionally, all persons will also be required to disclose disabilities including disabilities relating to sight and hearing. The census officers will also require disclosure of a person’s difficulty with walking or climbing steps, remembering or concentrating, and communicating.

 
For all persons above 3 years old, disclosure will be required to be made of school attendance status, education attainment, ownership of mobile phones, access to mobile phones, use of internet and use of computers, laptops/tablets. For persons aged 5 years and older, there is a requirement to provide details on their employment and economic activity and use of e-commerce.

 
Female children of 12 years and above, and women will additionally be required to provide details of all the children they have delivered alive (called live births), and also to provide details of their last live birth. All persons 15 years and older will be required to provide details of their use of e-commerce, as well as their training.

 

Data Protection Law in Kenya

As with all official censuses and Kenya’s previous censuses, the Kenya government will collect a vast amount of quite accurate and personal information about all (or most) persons in Kenya on the 25th August 2019. This information will be invaluable for the national and county governments, primarily to aid in government planning and policy decision-making, including assessing achievement of goals, for instance, the country’s attainment of SDGs.

 
The UN Fundamental Principles of Official Statistics in its preamble notes the fundamental importance of official statistics for the national and global development agenda, and the critical role of high-quality official statistical information analysis and informed policy decision-making in support of sustainable development, peace and security, as well as for mutual knowledge and trade among the States and peoples of an increasingly connected world, demanding openness and transparency. Among the principles it outlines is that personal data collected in the context of government obtaining official statistics is to be strictly confidential and used exclusively for statistical purposes.

 
Data protection laws around the world emphasise the fair obtaining and further processing of personal data, in most cases requiring direct consent, and data security of the personal data once collected.

 
Kenya’s data protection legislation is currently limited to the Constitutional provisions under the 2010 Constitution, which guarantees the right to privacy in Article 31 in the following terms: Every person shall have the right of every person not to have - (c) …information relating to their family or private affairs unnecessarily required or revealed” - (d) …the privacy of their communications infringed.

 
There are currently two draft Bills on data privacy and protection in Kenya. Parliament’s draft Data Protection Bill 2018 defines personal data to mean information regarding a person which makes that person identifiable, directly or indirectly, by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social or social identity. Additionally, ‘sensitive personal data’ includes data revealing the natural person’s race, ethnic social origin, location, genetic data, and personal financial expenditures.

 
Given the detailed personal (and in some instances highly sensitive) information that is to be collected in respect of all persons, coupled with the fact that a failure to disclose carries penal risk (imprisonment for up to one year or to a fine of up to Ksh 100,000, or both), it is important that there is adequate protection in law on the disclosures made.

 
The Census Order expressly provides that information to obtained during the census is to be confidential and no report, abstract or document is to be published or shown to any unauthorized person. A person who discloses Census information to another person without lawful authority risks imprisonment of up to 1 year or a fine of Kshs 100,000, or both.

 
However, a clear gap exists that cannot be ignored. Firstly, the absence of a data protection law makes the disclosures to be made subject to abuse, even with the framework under the Census Order. There needs to be a clear provision in the law that protects information disclosed from being used, compiled and or stored except and strictly for purposes of national statistics. In absence of this, governments have been known to use collected statistics to profile populations for other purposes. Further, there should be a manifest statement by the government regarding what each disclosure is for, in order for there to be an assessment on whether collecting particular information matches with the intended aim, in keeping with the minimisation principle in personal data protection, also included in the draft Data Protection Bill.

 
The draft Bill provides for the exempts data processors (including persons who collect, store, analyse personal information) from the requiring consent of a person (called the data subject) where its is for the purpose of historical, statistical or scientific research. Further, personal data processed only for research purposes is exempt from the provisions of the draft Bill if results of the research or resulting statistics are not made available in a form which identifies the data subject or any of them. Our view is that the provisions relating to the statistical or scientific research ought to be limited to statistics under the Statistics Act, otherwise the flood-gates will be open for all manner of claims of exemptions from the law under the guise of statistics and scientific research.

 

Privacy concerns for non-Kenyans

All foreigners in and travellers transiting through Kenya on the census reference night are required to provide the same information that Kenyan are to provide. The Census Order requires information to be collected in respect of:


(a) all persons in Kenya on the census reference night; (b) all persons on transit, travelers and those residing in open and temporary shelters on the census reference night; and (c) all persons accommodated or residing in private and public institutions on the census reference night.

 
This potentially raises the question, particularly in light of the much hyped EU General Data Protection Directive which came into force in May this year, about the processing of personal data of citizens of the European Union member states whose information will be collected on the Census night, and which the GDPR requires to be processed in a particular manner.

 
Consequently, as a minimum, the government should t ensure that now following the recent public consultation on the Data Protection Bill 2018, this law is enacted and comes into force ahead of the census not only to protect the personal information of Kenyans but also to comply in some way with global best practices on personal data protection, given that foreigners in Kenya are also mandated to participate in the census.

 

 Contact

Judy Chebet

Associate Partner

+254 71 3340 938

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