By Cherie Oyier
What is surveillance?
Surveillance is the systematic monitoring of people, activities, places and behaviours.
At the core of surveillance is the need to collect information that is used for different purposes depending on the priorities of the collector. For instance, online platform owners may surveil users’ activities and behaviours to determine what users like or are interested in to suggest the same or similar products, images, videos or services to them.
On the other hand, states surveil people, activities and places to maintain peace, public order, and national security among other purposes.
While surveillance may be necessary and justified in certain circumstances, it can also be used to cause harm and stifle the rights and freedoms of citizens. Based on the apparent risks of surveillance on rights and freedoms, KICTANet conducted and launched a report on surveillance laws and technologies used in countering terrorism and their potential impact on the civic spaces in Kenya.
The report is part of a three-part study by a panel convened by ARTICLE 19 Eastern Africa with the support of The Fund for Global Human Rights, constituted by HAKI Africa, the Kenya ICT Action Network (KICTANet) and the Centre for Human Rights and Policy Studies (CHRIPS), to carefully interrogate the impact of counter-terrorism (CT) and the prevention of violent extremism (PVE) and similar national security measures on civic space in Kenya to inform interventions that enhance greater accountability for violations and ensure an open civic space free from unjustified restrictions under the guise of security.
Finding the Equilibrium: Balancing Security Needs and Privacy Rights
Surveillance in Kenya has gone through dramatic evolution from the colonial period when people (allied to the colonial government) collected intelligence on behalf of the colonial government. Today, we have seen the advent of sophisticated surveillance tactics facilitated by technology. From CCTV cameras to facial recognition technologies, digital identity systems, and communication interception tactics, among other tactics.
The three reports explore the different incidents of terrorism, violent extremism, internal conflicts and general insecurity in Kenya and how these incidents have collectively shaped arguments justifying surveillance. In pursuit of upholding national security, a regulatory framework that takes cognisance of technology as a tool for surveillance has grown over the years.
The National Intelligence Service Act 2012, Prevention of Terrorism Act (POTA) 2012, Mutual Legal Assistance Act 2011, Computer Misuse and Cybercrimes Act 2018 and the Kenya Information and Communication Act 2011, are some of the laws which permit surveillance and the interception of communications.
Our research points out that the sections that deal with permissions to surveillance and intercept communications under these laws are broadly and vaguely drafted hence opening them up to very broad interpretations that could be abused by law enforcement authorities hence stifling the civic space.
Other issues that are discussed in detail include the fact that procedures stipulated under the statutes are not adhered to often. For instance, sections 34 and 36 of the POTA Act set out the procedure for obtaining a warrant before commencing surveillance or communication interception, however, our research shows that often, surveillance precedes the warrant.
A warrant is usually obtained after law enforcement collects enough intelligence, hence the statutory procedure is only complied with to sanitise an already flawed process.
Public Perception of Surveillance Technologies in Mombasa, Mandera, and Bungoma
Pursuant to launching the reports, the four organisations set out to disseminate the reports in three counties including Mombasa, Mandera and Bungoma.
The objective of the dissemination exercise was not only to share research findings but also to enable a platform of open dialogue towards developing effective strategies that balance security concerns with the protection of civic space.
The dissemination exercise brought together stakeholders from civil society, law enforcement, representatives from youth, gender and minority rights organisations, religious leaders, journalists, and county officials among other stakeholders.
Surveillance laws and technologies elicited varying and interesting thoughts and discussions among the stakeholders. Most stakeholders admitted to not understanding the full extent of their privacy rights or how surveillance could potentially affect their personal lives as well as the work they do in various capacities.
Civil society representatives recognised that the nature of their work potentially puts them at risk of being surveilled. In the three counties where cases of terrorism and violent extremism have been registered, civil society organisations are often perceived as terrorist sympathisers where they agitate for compliance with and upholding of constitutionally guaranteed human rights when such cases arise.
These perceptions render the civil society organisations in these areas prone to being subjected to extra scrutiny and surveillance hence limiting actors’ rights to freedom of expression, and right to privacy.
Civil society actors admitted that though they are aware that they are sometimes surveilled, they do not understand how surveillance happens. They expressed concerns regarding the increased use of smartphones, laptops, applications and the internet to advance their advocacy work and the part such technologies play in providing a portal for surveillance.
Civil society organisation actors expressed the need for training on cyber hygiene practices to protect themselves and their work. It was very apparent that the civil society representatives in the three counties are also very interested in understanding digital rights and incorporating them into their work.
Civil society actors also expressed concerns that discussions centring on digital rights and the impact of technology are concentrated within Nairobi with stakeholders in other counties being disproportionately excluded.
The result is that civil societies stand to be negatively targeted and impacted and further due to limited understanding of these rights by the actors in these regions they are less likely to be able to adequately agitate for the rights and freedoms of Kenyans in their regions.
On the other hand, law enforcement and county officials present in the three counties, argued that surveillance even of civil society organisations was necessary to uphold national security and prevent crime among other reasons.
Conversations about the right to privacy where terrorism and violent extremism are prevalent were perceived as elitist. For this stakeholder group, the surveillance mechanisms and resultant impact are necessary and proportional if it means that they may be able to gather intelligence that may be used to prevent terrorist attacks, and violent crimes among other vices, the collateral effects on the civic space notwithstanding.
Law enforcement and county officials also admitted that most of the time they may overstep their mandate not out of pure disregard for the law but due to a lack of awareness of particular provisions of the law. Hence it is imperative that as we continue to rely on technology to collect intelligence, law enforcement authorities are also taken through capacity-building exercises focusing on the laws and regulations that they need to comply with.
Conclusion
The role of surveillance cannot be discounted from a national security point of view. However, it is imperative that appropriate laws and regulations are put in place and complied with to ensure a healthy balance of rights is maintained.
Further, this dissemination exercise revealed the urgent need to include stakeholders in regions outside of Nairobi in digital rights discussions and build their capacity to enable them to protect and agitate for the rights of their constituents.
Cherie Oyier is KICTANet’s Programs Officer for the Women’s Digital Rights Program.
