Political Parties complaints

Complaints Detail

Complaints

Political Parties complaints

Country: Kenya
Court:
Sources: Social media (Twitter),Official statements from ODPC,Amnesty International
Tags: right to privacy,consent,data controller
Summary

In June 2021, Kenyans discovered that they had been involuntarily registered as political party members. This was a flagrant violation of Kenyans' right to form free political parties, which includes the right to join any political party, pursuant to Article 38 of the Constitution of Kenya, as well as a violation of their right to privacy under the Data Protection Act, 2019. As a data controller, the Office of the Registrar of Political Parties (ORPP) is required by the Data Protection Act to ensure that personal data in the Integrated Political Parties Management System (IPPMS) is accurate and adequately protected. Through social media platforms, members of the public lodged complaints against the ORPP and political parties. As of 24 June 2021, the ODPC stated in a statement that they had received more than 200 complaints and would continue to investigate the matter.

Analysis

The Data Protection Act (DPA) gives mandate to the Office of the Data Protection Commissioner (ODPC) to receive and investigate any complaints on infringement of any person’s rights as provided for in Section 8(f) of the Act. The criteria for lodging a complaint as well as investigation is also prescribed under the Section 56(1). Complaints may be made to the ODPC in writing or orally, where a complaint is made orally, the same is recorded in writing and files with the Data Commissioner. Complaints made are to be investigated within 90 days from the date of filing the complaint as provided under Section 56(5). 

An official statement from the ODPC dated June 25 noted that as of 24 June, 2021 the ODPC had received 200 complaints on the unauthorized use of personal data for registration to political parties. The statement asked for patience from the public as the ODPC worked on taking steps to ensure protection of the rights of those affected. No further course of action was communicated in the statement. As of 26th October 2021, no further public response from the ODPC regarding the status of the complaints filed had been received. It is also important to note that the timeline given for investigation of complaints as prescribed by the DPA has since lapsed. 

Although no remedy/course of action has been prescribed by the Data Commissioner, the DPA gives remedies where the investigations conclude that there was indeed a breach and/or non-compliance with the provisions of the Act. The remedies include:

  • Enforcement Notice: an enforcement notice is served by the Data Commissioner to the non-compliant party requiring compliance within the period specified in the notice. The enforcement notice specifies the provision of the act that has been contravened, measures to be taken to remedy or eliminate the situation, a specified period of 21 days for the implementation of the measures and any right of appeal Anyone who fails to comply with the enforcement notice without just cause is liable on conviction to a fine not exceeding 5 million or to imprisonment for a term not exceeding two years, or to both (Section 58).
  • Issuance of a Penalty Notice: A penalty notice may also be issued where a person fails or is failing to comply with the provisions of the Act. The penalty notice requires payment of a fine to the ODPC. The amount of the fine payable is noted in the penalty notice and is determined by criteria prescribed under Section 62(2a-l) 
  • Administrative fines: Where there is infringement of a provision of the DPA, the Data Commissioner may impose a penalty notice up to 5 million shillings and in the case of an undertaking, up to one percent of the annual turnover of the preceding financial year. 

Persons to whom the remedies prescribed are enforceable against may appeal to the High Court (Section 64).The act further prescribes that, a data subject who suffers loss or damage as a result of the non-compliance with the provisions of the act is entitled to compensation for the damage from the data controller or data processor. In this case the data processor liable to compensate data subjects would be the Registrar of Political Parties (Section 65).The complaints made to the Data Commissioner on the unauthorized use of personal data for registration to political parties are clearly founded as the unauthorized use of personal data was in contravention of the provisions of the DPA on consent, the duty to notify, collection of personal data, the right of the data subject to be informed of the use for which their personal data is being put, and the principles and obligations of personal data protection.

Frequently Asked Questions

Frequently Asked Questions

A data subject is a natural person who is the subject of personal data held by a controller and who can be identified, directly or indirectly, through that personal data.

Each data subject has the right:

  • to be informed whether or not his or her personal data is being processed,
  • to request information about the processing, if data has been processed,
  • to be informed of the purpose of the processing and whether the data is being used in accordance with those purposes,
  • to be informed about third parties who receive personal data in Kenya and abroad,
  • to request the rectification of incomplete or inaccurate processed data, and
  • to request the erasure or destruction of personal data.

Data processing refers to any operation performed on personal data, either entirely or partially, automatically or manually. This includes collection, recording, storage, preservation, modification, revision, disclosure, transmission, assignment, making available, classification, or prevention of use.

Data controller: is a natural or legal person who determines the purposes and means of personal data processing and is accountable for the data filing system's establishment and administration.

Data processor: is a natural or legal person that processes personal data on the basis of a data controller's authorization.

The data controller or processor is required to provide the following information: the purpose of the processing, the recipients of the processed data and the purpose of the transfer, the method used to collect personal data and its legal basis, and any other rights granted to the data subject by law.

The principles governing data processing are as follows: it must be processed fairly and lawfully, it must be accurate and up to date, it must be processed for specified, explicit, and legitimate purposes, it must be adequate, relevant, and not excessive in relation to the purposes for which it is processed, and it must be retained for the duration specified by law or for no longer than is necessary for the subsequent processing.

A Data Protection Impact Assessment can be used to identify and mitigate high risks associated with data processing that may impact the rights and freedoms of data subjects.