The Efficacy of the Office of the Data Protection Commissioner in Safeguarding the Right to Privacy in Kenya: An Empirical Review
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Abstract
This paper critically examines the operational environment of the Office of the Data Protection Commissioner in Kenya with the objective of identifying challenges and proposing recommendations to enhance its efficacy. By delving into these complexities, the study aims to offer insights that can inform improvements, thereby fostering a more robust data protection framework in the country. Ultimately, the paper seeks to bridge the gap between desired levels of protection and the current state of personal data security, ensuring that legal provisions translate into practical safeguards amidst the evolving digital landscape. The paper focuses on desk review approach and analyses statutes, regulations, case law and other legal writings which have informed the assertions in regard to office of data protection commissioner and its role in safeguarding the right to privacy. From the review, it has been concluded that the establishment of the Office of the Data Protection Commissioner was an critical move towards promoting and enhancing the right to privacy in the country, putting Kenya in a good position as key leading countries across the globe that have gone a notch high in promoting the right to privacy. As part of recommendations, the paper has recommended the essence of continuous improvement as this would enable the office of data protection commission to keep pace with the ever-changing technological world particularly on data security and privacy.
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References
Books and Reports:
Ademuyiwa, Idris, and Adedeji Adeniran. "Assessing Data Protection and Privacy in Africa." Assessing Digitalization and Data Governance Issues in Africa. Centre for International Governance Innovation, 2020.
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Legislation and Regulations:
Data Protection (No. 24 of 2019)
General Data Protection Regulation (EU) 2016/679
Data Protection (Registration of Data Controllers and Data Processors) Regulations, 2021.
The Data Protection (Complaints Handling and Enforcement Procedures) Regulations, 2021.
Constitution of Kenya 2010
Kenya Information and Communications Act, 1998
National Intelligence Service (NIS) Act (2012)
Prevention of Terrorism Act (2012)
Security Laws (Amendment) Act (2014)
Computer Misuse and Cybercrimes Act (2018)
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News Articles and Online Sources:
Terry Mwango, Ariana Issaias, George Ndung'u, "Kenya: The Office Of The Data Protection Commissioner Issues Decisions In The Determination Of Complaints (2023) il
John Ndirangu, “The making of an effective data watchdog with sharper teeth” (2023) [Link: https://www.dlapiperafrica.com/en/kenya/insights/2023/the-making-of-an-effective-data-watchdog-with-sharper-teeth.html]
Privacy International, "Data protection compliance in Kenya: ODPC issues penalty notices to three data controllers" (2023)
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(Judicial Review E028 of 2023) [2023] KEHC 17321 (KLR) (Judicial Review) (12 May 2023) (Judgment)
(Constitutional Petition E115 of 2022) [2023] KEHC 2688 (KLR)
Mwanzia v Rhodes (Constitutional Petition E115 of 2022) [2023] KEHC 2688 (KLR)
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Laibuta, M, 'Enforcing Data Protection: Examining Independence Challenges' [2021] 8 Kenyan Journal of Legal Studies 112.
Joseph Githaiga, "Enforcement Dynamics of Kenya's Data Protection Act 2019: A Three-Year Review" (2023) 15(2) Journal of Data Protection and Privacy Law 123-145
Gathwira, A, 'Ensuring Independence: A Critical Analysis of the Data Protection Commissioner's Role' [2021] 7 Kenyan Journal of Data Privacy 92
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