DAVID OCHAMI: Proposed KICA amendment - A draconian assault on Kenyan freedoms

If adopted by the National Assembly and signed into law, the proposed amendment to the Kenya Information and Communication Act will represent the most draconian and intrusive legislation yet enacted against fundamental freedoms guaranteed by the 2010 Constitution. These include freedom of speech, expression, dissemination through electronic means and the right to privacy.

While the constitution acknowledges that rights such as privacy, expression, speech and media freedom are not unlimited, Article 24 of the supreme law unequivocally states that any limitation of fundamental rights must be reasonable and justifiable in a democracy. The constitution safeguards citizens from unwarranted invasion into their privacy and explicitly decrees that the state lacks the authority to limit rights in a wholesale manner that infringes upon the rights of others.

Before enacting any statute or regulation to limit or circumscribe rights, the state is constitutionally mandated to ensure such legislation is specific, not broad or all encompassing. Furthermore, the state must consider less punitive or restrictive measures to achieve its intended purpose before enacting a statute or creating new crimes, as is demonstrably the case with this proposed amendment. Despite the proposer's elaborate justifications, this is a flawed law that demands rejection.

The amendments proposed by Aldai MP Maryanne Kitany fail the proportionality test for several critical reasons. Although ostensibly packaged to enable internet subscribers and investors to reap financial benefits, a closer scrutiny reveals a sinister underlying intention: to surveil citizens and enable their imprisonment based on new, spurious crimes.

Given its clear failure of the constitutionality test, the proposed amendments should be withdrawn in their entirety. The Standing Orders of both chambers of Parliament explicitly prohibit the debate and entertainment of any motion or proceedings that are patently unconstitutional. By allowing this proposal to reach its current stage, the House Business Committee has acted in direct violation of these Standing Orders and, by extension, the constitution itself.

Through these proposed legal changes, the state is creating a new layer of institutions and operators, effectively legalising the use of software to monitor communications, intrude into electronic communication and decrypt encrypted personal or corporate information. It is not "rocket science" to surmise that the state has already acquired or installed such surveillance technology, and these amendments seek to legally validate and implement its use. Recent revelations from a civil dispute involving a private citizen and State House operatives strongly suggest the Ruto administration has harboured such sinister intentions. Disturbingly, these amendments also seek to empower larger tech or broadcast firms to spy on smaller ones.

In a single, sweeping move, the Communication Commission of Kenya is being allocated unconstitutional powers reserved for the Media Council of Kenya to superintend media breaches and electronic and broadcast content. Simultaneously, these amendments intrude upon the police's established authority to investigate electronic crime.

For instance, every internet user, including those using personal computers or browsing in cybercafes, will be required to register or possess an electronic or digital signature. This signature can be used to track individuals and can be retrieved by the state or its agents, allowing them to legally track and even intercept electronic information. To achieve this, all internet service providers and investors in the cyber domain will be mandated to install new, invasive software and hardware. This software will impact personal devices such as cellphones and iPhones, which are redefined as "computers" by the proposed amendments.

This so-called digital signature is the functional equivalent of facial recognition technology used to identify, tag and spy on citizens in many autocratic states. With these amendments, the state now seeks to legally hack into your phone or computer using software, without recourse to existing legal frameworks.

If successfully enacted, all SIM card subscribers and broadcast license holders might be compelled to register or seek licenses afresh. Crucially, the ICT Cabinet Secretary could deny these licences based on wide and unpredictable criteria. These amendments allow for denial of registration for failing or refusing to supply "unnecessary or intrusive information."

Traditionally, a court order or a valid criminal investigation has been required to retrieve private data held by a service provider. However, under the proposed law, state agents will be legally mandated to order or retrieve such information on their own motion or based on an order from the service provider, effectively bypassing judicial oversight. Furthermore, no court order will be required to receive and retrieve private data for civil proceedings, a blatant disregard for established legal safeguards.

The writer is an advocate of the High Court of Kenya and journalist