ICT Policy Making in Kenya “Falls Below Standards” – Report

ICT policy-making in Kenya falls below the standard envisaged in the Constitution of Kenya, 2010, a new report released by Kenya ICT Action Network (KICTAnet) alleges.

The report, Public Participation: An Assessment of Recent ICT Policy Making Processes in Kenya says the government does not have a holistic, multi-disciplinary, multi-stakeholder, mechanism for public participation.

“The law is not a suggestion, and public participation, therefore, is not optional, it’s a mandatory requirement under the law,” Victor Kapiyo, Lawyer and  Researcher at Lawmark Partners LLP, one of the co-authors of the report said during its virtual launch Wednesday.

Together with his co-author, Sigi Waigumo Mwanzia, a digital rights researcher, noted that despite progress in the past decade involving the public in the making of ICT related policies, challenges still remain.

“ICT Policy processes in Kenya have over the past decade been secretive, highly centralised, authoritarian, and characterised by low levels of trust and the limited participation of, and contribution from non-government stakeholders,” the report reads in part.

The study assessed the extent to which the public was informed, consulted and involved in the processes leading to the development of the National Information Communications and Technology (ICT) Policy, 2019; the Computer Misuse and Cybercrimes Act (2018); and, the Data Protection Act, 2019.

Based on the ‘Diagnostics Tool for Inclusive CyberPolicy Making,’ the report reviewed the extent to which each process was ‘open and accessible’, ‘diverse’, ‘collaborative’, ‘consensus-driven, ‘evidence-based, and ‘transparent and accountable.

“Like the cybercrimes process, the data protection and the ICT Policy processes faced challenges in ensuring balanced expertise and research in the processes, and securing agreement on the interpretation and use of facts,” the report found out. 

However, the Data Protection Process was the most open and accessible across all stages for a number of reasons the report found out.

This was attributed to the increased public interest in data protection and privacy issues, sparked by ongoing national events, such as the introduction of Huduma Namba, and the global trend towards the adoption of national data protection laws following the adoption of the GDPR in the European Union.

The report emphasises that the right to public participation is an enabler of political and socio-economic development and the realisation of numerous rights.

For this to be realised, “There needs to be a clear roadmap straight from state agencies rolling out the policy or legislative processes for people to identify to be able to disseminate before they start to engage in the public participation process itself,” Sigi noted.

Mr John Walubengo, Lecturer, Faculty of Computing and Information Technology (CIT) at the Multimedia University of Kenya observed that the best benchmark in the country was during the formulation of the Data Protection Act policy.

“I think it remains one of the best guidelines that we could adopt because the membership was presented as a task force in terms of references and outline timelines given,” he noted. 

The report recommends that the National Assembly should update and enact the Public Participation (No. 2) Bill, 2019.

The Bill should provide principles for public participation, guidelines to the public for making oral and written submissions, prescribe standards and procedures for submissions, and set timelines for consideration and feedback.