Cyber Rights and Wrongs: Safeguarding Human Rights Online in Kenya

With the global rise of technology, cyberspace has emerged as a new domain of human activity. We find ourselves being part of digital networks, engaging in cyber interactions, and living in virtual realities. Despite the many benefits of the digital world, numerous challenges have arisen in relation to the protection of human rights in cyberspace.  Two prevailing digital rights issues – in Kenya and elsewhere – are data protection and online violence.

Privacy and data protection

Partially due to the fact that information is so easily accessible in cyberspace, we are seeing an increase in the occurrence of privacy breaches and data leaks. These breaches and leaks have no geographic boundaries – alongside Kenya, many countries are experiencing similar problems. The lack of laws and regulations protecting personal data from theft and misuse in many countries results in individuals having their personal data stolen and used for criminal activity and other malicious intent.

Vulnerable groups such as minors, ethnic minorities, and religious minorities are particularly at risk of having their data left unprotected or face obstacles in accessing digital resources. Equally, people from lower socio-economic backgrounds are less likely equipped to safeguard their own rights online. This creates an inequality of rights between varying socio-economic groups in Kenya, discouraging democratic participation, interfering with the right to privacy and restricting the exercise of freedom of expression for some.

In Kenya, there have been some positive developments towards strengthening the right to privacy in relation to cyber technology. For instance, in 2019, the Data Protection Act was introduced. In addition, courts have developed case law strengthening the right to privacy. For example, the High Court of Kenya issued an important decision in the case of Okoiti v. Communications Authority of Kenya. It ruled that the plan of the Communications Authority of Kenya to implement a system providing them with access to mobile service subscribers’ data, including their call records, was “a threat to the subscriber’s privacy”. The Court thus found the proposed system to be unconstitutional.

Additionally, in Nubian Rights Forum & 2 others v. Attorney General and 6 others, the High Court of Kenya held in 2020 that due to the inadequacies in the legal framework, the collection of DNA and GPS data, and thus the rollout of biometric Huduma cards for the country’s digital ID system – the National Integrated Identity Management System (NIIMS) – was an unjustifiable limitation of the right to privacy. The Court found that such data collection without adequate safeguards was unconstiutional.

These two cases accentuate that the Kenyan courts are taking some positive steps in protecting the right to privacy, particularly in relation to data protection.

Online violence

Although online harassment – including cyberbullying, doxxing, online sexual harassment and trolling – infringes on international human rights standards, we are witnessing an increase in its prevalence. Online harassment severely restricts the enjoyment that persons have of their rights online. This is particularly the case for marginalised groups, including women and LGBTQ+ people. For those who experience online harassment directly, these encounters can additionally have profound real-world consequences. For example, it can lead to feelings of shame, guilt, trauma, and depression – again, most notably amongst young people and other vulnerable groups. This highlights the need to provide protection for individuals at risk, through the introduction of safeguarding policies, as well as through education.

Online harassment can lead to significant self-censorship online in order to avoid future harassment. Furthermore, under the guise of combatting online harassment, some governments engage in censorship of digital media, which has been a growing issue in countries such as China and Thailand. This, in turn, can result in a shrinking space for freedom of expression and information, undermining democracy and human rights protection more generally.

Given the problems around privacy, data protection, and online violence, it is clear that a rapidly developing and unregulated cyberspace poses serious challenges to the protection of human rights.

One of the key challenges is in getting lawmakers and law enforcement officials to recognise the severity of online harassment. Online violence must be treated with appropriate levels of concern, and it must be recognised that real and persistent harm can be suffered online. Two further challenges that arise that are exacerbated in cyberspace relate to the volume of threats that can be received, given the ease with which attackers can harass others via social media platforms; and the difficulties in identifying perpetrators who can mask their online identities.

Although it is clear that what is required in the face of online attacks is swift and firm justice, the reality is that many perpetrators are not being held accountable. Impunity perpetuates a cycle of violence: online harassment going unpunished sends a signal that public authorities do not take the attacks seriously.

Under international law, states must take measures to protect people against online harassment and data misuse. To combat these issues, it is essential that governments implement or update their laws, policies, and initiatives in line with international human rights law. It is essential that such laws meet international legal requirements for restricting human rights, in particular freedom of expression, and ensure a fair and nuanced balance with the right to privacy. Moreover, states should ensure that their domestic legislation provides for lawful processing of personal information – and they must also make sure to keep up to date with data protection developments. States could also introduce or improve measures combating cyberbullying and online harassment, as well as initiatives to prevent censorship. Only once such mechanisms are in place and enforced would it be possible to say that we are working towards fully protecting human rights – both online and offline.

Written by Benardine Atuhairwe and Michelle Mwelesa

Benardine Atuhairwe and Michelle Mwelesa are lawyers participating in our Peer Support Programme, part of our project: Empowering Women in Digital Rights Advocacy (EWDRA) in sub-Saharan Africa.

For tips on digital safety to protect yourself against online harassment, see our Advanced Modules on Digital Rights and Freedom of Expression Online in sub-Saharan Africa – Module 4: Privacy and Security Online.

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