As the coronavirus pandemic took hold in 2020, the rights to privacy, data protection and freedom of expression were interfered with, infringed upon and violated in Kenya and Uganda, a new report by ARTICLE 19 Eastern Africa, the Kenya ICT Action Network (KICTANet) and Pollicy reveals.
The report, “Surveillance, Data Protection and Freedom of Expression in Kenya and Uganda during COVID-19,” examines government and private sector surveillance measures and practices during the first year of the coronavirus pandemic (March 2020 – March 2021), and their human rights implications in Kenya and Uganda.
ARTICLE 19’s Eastern Africa’s Regional Director, Mugambi Kiai, said:
“Measures to tackle the COVID-19 public health crisis in Kenya and Uganda have de-prioritised human rights protections. Mass and targeted surveillance and unsupervised data collection affect individuals’ rights to privacy and reduce their ability to access information safely and securely. On the transparency and accountability fronts, we observed that the public’s right to know was not proactively promoted, given failures by state and non-state actors to disclose crucial information and documents, including about public-private partnership.”
Speaking during the launch, Grace Githaiga, the Kenya ICT Action Network’s Convenor noted that:
“The government should engage the public and provide accurate, timely, and complete information about the nature and extent of COVID-19 surveillance measures in place. Further, proper oversight and sufficient safeguards consistent with data protection principles must be implemented, given the sensitivity of health data.”
In her statement, Neema Iyer, Pollicy’s Executive Director pointed out that:
“This report is a critical step in ensuring data protection, especially for marginalised groups, with an eye to creating digital governance systems based on social justice and harm reduction. We need to involve diverse communities in these conversations and hope that the findings can bring together different stakeholders to work towards equitable and fair data futures.”
While international human rights law allows for increased powers and special measures to be practiced during health crises, such actions must be temporary, and any measure must pass the three- part test of legality, necessity and proportionality.
The following key trends have been observed in Kenya and Uganda:
- The surveillance measures and practices adopted to contain the coronavirus pandemic, including coronavirus track and trace applications, do not comply with the requirements of legality, necessity and proportionality under international law and national laws guaranteeing the rights to privacy, data protection, freedom of expression and access to information.
- Data protection authorities are not independent and lack the functional and operational capacity to oversee surveillance measures and practices to contain the coronavirus pandemic.
- State actors and private entities have collected, processed and shared personal data, including sensitive health data, in breach of data protection principles and safeguards in national data protection laws. In particular, they failed to integrate data protection principles including the purpose limitation, data minimisation, data retention, and prior and informed consent, in the design, development and deployment of technologies, products and services to tackle the coronavirus pandemic.
- Despite reports of close collaboration between state agencies and private actors to deploy digital technologies as part of pandemic measures, there is no transparency about these partnerships. While there have been press reports detailing collaboration on digital contact tracing initiatives, there is no publicly accessible information about public-private contracts, data sharing agreements, architecture of the technologies, budgetary allocations or procurement processes of these pandemic surveillance technologies.
Call for Rights to be Upheld
There is an urgent need for the Kenya and Uganda governments to protect, promote and fulfil their citizens’ rights to privacy, data protection and freedom of expression, especially during the coronavirus pandemic. The pandemic must not be used as an excuse to normalise data collection, or for unsupervised intrusion and control over people. Specifically, surveillance measures, even during periods of crisis, must conform to the requirements of legality, legitimacy, necessity and proportionality as provided under international human rights law.
For more information, please contact:
Mugambi Kiai, Regional Director at firstname.lastname@example.org
Grace Githaiga, Convenor at email@example.com
Neema Iyer, Executive Director at firstname.lastname@example.org