0

REGULATION AND PROTECTION OF CHILDREN’S DATA ON SOCIAL MEDIAPLATFORMS.

Uncategorized

BACKGROUND:
TikTok Information Technologies UK Limited and TikTok Inc (TikTok) were fined £12,700,000 by
the Information Commissioner’s Office (ICO) for a number of data protection legislation
violations, including failing to use children’s personal data legitimately.

Despite its own policies prohibiting children under 13 from opening an account, the ICO
estimates that TikTok allowed up to 1.4 million UK children under 13 to use the site in 2020.

According to UK data protection law, organizations that provide information society services to
children under 13 must acquire parental or guardian agreements before using personal data
about them.

  • The UK General Data Protection Regulation (UK GDPR) was broken by TikTok between May2018 and July 2020 in the following ways, according to the ICO:
  • Offering its services to children under the age of 13 in the UK and processing their personal information without their parents’ or guardians’ permission;
  • Failing to adequately notify platform users about how their data is collected, utilized, and shared in a clear and understandable manner. Without that knowledge, platform users—especially young users were unlikely to be able to decide for themselves whether and how to interact with it;
  • Failing to make sure that the personal data of its UK users were handled fairly, lawfully, and in an open manner.

There has been a lot of controversy and heated debates on the use of this platform by minors.The majority of people believe this site is highly inappropriate for minors to use and believe. serious measures should be set in place to protect minors. This begs the question, does Kenya have laws or regulations to safeguard minors’ interests in online platforms such as Tik Tok?

KENYAN LEGAL FRAMEWORK

The Data Protection Act of 2019 defines sensitive personal data as revealing the names of a
person’s children. It further states that one cannot process the personal data of a child without
parental consent or unless it advances the best interests of a child. 2 Additionally, the Act states
that a data processor or controller should set in place mechanisms for age verification and
consent to process a child’s personal data namely;

  • Available technology;
  • Volume of personal data processed;
  • Proportion of such personal data likely to be that of a child;
  • Possibility of harm to a child arising out of the processing of personal data; and
  • Such other factors as may be specified by the Data Commissioner.

The are various harmful activities that can arise from the use of TikTok by minors which include;

  • Grooming – defined in the Children’s Act 2022 as the establishment of a relationship through electronic means to manipulate a child and facilitate sexual contact.
  • Online abuse, harassment, or exploitation in which minors may be subjected to cyberbullying and stalking from adults.
  • Child pornography – this is where a minor’s photos or images may be used and distributed for sexual purposes and is an offence as per the Computer, Cybercrimes and Misuse Act 2018.


These are some of the dangers that our children may be subjected to if online platforms such as
Tik Tok fail to set up and enforce regulatory mechanisms to protect them. However, it is evident
as per the issue in the United Kingdom, that these platforms are profit-based and will do
anything to gain more followers to boost its popularity and sales.

This is the main reason why the Office of the Data Protection Commissioner as established
under Section 5 of the Data Protection Act has the following powers;

  • Promote self-regulation among data controllers and data processors;
  • Conduct an assessment, on its own initiative of a public or private body, or at the request of a private or public body for the purpose of ascertaining whether the information is processed according to the provisions of this Act or any other relevant law;
  • Receive and investigate any complaint by any person on infringements of the rights under this Act;
  • Conduct inspections of public and private entities with a view to evaluating the processing of personal data.


The Data Protection Commissioner is thus mandated by law to ensure that TikTok and other
online platforms create mechanisms to protect the data of children using their platforms and
regulate the content that they view.

CONCLUSION

Kenya has the necessary legal framework to protect data of the minors. It is up to the Kenyan
public to raise issues or file a complaint against these online platforms if there are no
mechanisms to safeguard our children. Finally, the Data Protection Commissioner is legally
obliged to compel these platforms to protect children and raise punitive measures against
platforms that fail to do so.

REFERENCE

Data Protection Act 2019
Children’s Act 2022
Computer and Cybercrimes and Misuse Act 2018.

For More Information Please Contact
benson.ngugi@attorneysafrica.com
Gladys.kihara@attorneysafrica.com

0

CRUMBLING OF THE SYSTEM: THE STORY OF ARDHISASA

Property & Real Estate

INTRODUCTION

Land in Kenya remains the single most explosive issue. It was a major issue in the quest for independence. The land question has over time been shaped by economic, political, social and legal parameters.

BACKGROUND

Two years after its launch, many Kenyans are already wishing for the entire system to be overhauled. This is the case with the National Land Information Management System (NLIMS) commonly dubbed ArdhiSasa launched in April 2021 by former President H.E. Uhuru Kenyatta.

The Ministry of Lands and Physical Planning coupled with the National Land Commission, county governments and other stakeholders developed the National Land Information Management System to address the challenges that were facing the existing system.

These included but were not limited to :

  • Loss of records
  • Destruction of records
  • Theft
  • Misfiling
  • Manipulation of land records

LEGAL FRAMEWORK

Under Section 6 of the Land Act (No. 6 of 2012), the Cabinet Secretary of the Ministry of Lands and Physical Planning is mandated to coordinate and manage the National Spatial Data Infrastructure.

They are also required to coordinate the development and implementation of a National Land Information System in collaboration with the Commission.

The Registrar of Lands is obligated under Section 9 of the Land Registration Act to keep the register and other necessary documents in a safe, readable, and trustworthy format, which includes, among other things, electronic files. On the other hand, Section 10 emphasizes, among other things, the public’s ability to access the register via electronic means.

In fulfilment of this role, the Ministry embarked on developing technologies, policies and putting up the necessary resources to promote the sharing of geospatial data throughout government levels, private and non-profit sectors, and the relevant stakeholders.

HOW IT WORKS

Essentially, NLIMS is an information system that enables the capture, management, and analysis of geographically referenced land-related data to produce land information for land administration and management decisions. The system integrates all operations of the Ministry of Lands’ line departments and provides a one-stop-shop where end-to-end transactions in relation to land are conducted.

Currently, the property records available in the system are those registered under the Nairobi Registry. The Ministry intends to update the system to include properties registered at the Central Registry (covering the Government Lands and the Land Titles Registries) and subsequently registries in other counties in Kenya.

It is worth noting that currently, not all types of land records are in the system. The system as structured only identifies properties with geospatial data. Therefore, sectional properties, such as apartments, flats are not in the system.  Nevertheless, at the property owner’s request, the properties of this nature can be surveyed and fed into the system.

The system does NOT provide for the following categories of properties: –

  • Sectional Properties
  • Properties with incomplete data records or where ownership cannot be ascertained, e.g., records that lack documentation showing how the proprietor came to own the property, e.g., letters of allotment or transfers and;
  • Properties recognized as public land and captured on the Report of the Commission of Inquiry into Illegal and Irregular Allocation of Land (Ndung’u Report) and the Revocation Gazette Notice No. 6862.
  1. Land administration services- this includes processes such as subdivision, extension of leases, change of user, consents, lease preparation, the extension of user, and renewal of leases;
  2. Physical planning services- this includes approval of part development plans, plan preparation, and issuance of certificates of compliance;
  3. Survey and mapping services such as subdivision, amalgamation, new grants, re-survey, surveying of sectional properties, extension of leases, and change of user;
  4. Valuation services – asset valuation, government leasing, government purchase, estate administration, and arbitration;
  5. Adjudication & settlement of land
  6. Land allocation services by the National Land Commission

ISSUES AFFECTING THE PLATFORM

Recently, the platform has faced harsh criticism from stakeholders due to its inefficiency in service delivery. The stakeholders claim that thousands of their transactions have been sitting in the ArdhiSasa system for the past six months, awaiting approvals with no set deadline.

The verification of original certifications submitted based on physical files that have since been stored away from the Ministry of Lands offices in Nairobi to Ruaraka is at the heart of the delay.[1] The main conflict herein is that we are still using physical verification of files on the platform which is digitized. Furthermore, the physical files are no longer at the Ministry of Lands offices. Moreover, the Ardhi Sasa system only covers Nairobi County which disadvantages stakeholders operating in other areas.

All these would have been avoided if the land records were wholly digitized. The digitization of land records was formulated back in 2013 by Charity Ngilu, Former Cabinet Secretary of Lands. It was also done in accordance with Sections 9 and 10 of the Lands Registration Act 2012.

The Law Society of Kenya through its Chairperson Eric Theuri has expressed frustrations with the platform’s efficiency. There have been doubts as to whether the Ministry can even achieve its deadline of June 2023 for digitizing all land records considering that the delays have been ongoing for years. Moreover, most stakeholders doubt the legitimacy of this platform as it has other dire issues such as the incompletion of charging of properties by the banks so they may act as security as per Section 80 of the Lands Act 2012. Numerous titles that were recorded in NAIROBI/BLOCKXX/XXX,  have

not yet been uploaded to the system and as a result, cannot be searched for or validated, making it impossible to perform due diligence on such properties.[1] This immediately contradicts Section 29 of the Land Registration Act which provides for every proprietor to have had notice of every entry in the register pertaining to land at the time of acquisition. This is mostly achieved through searches as stipulated in Section 34 of the Land Registration Act.

CONCLUSION

The land question in Kenya requires a bold and radical departure from past practice which has been deferential to property rights however acquired and neglected the grievances that people have over land. The process is likely to be contested by beneficiaries of the current system

All these issues have prompted the Law Society of Kenya to institute legal action against the Lands Ministry should they fail to digitize the land records from June 2023 and address the various issues affecting the Ardhi Sasa platform.

The Law Society is within the provisions of the Land Act and Land Registration Act of 2012 to institute such legal action.

For More Information Please Contact

Allan.mafumbo@attorneysafrica.com

Gladys.kihara@attorneysafrica.com

Mupa.mmbetsa@attorneysafrica.com

REFERENCES

Land Act 2012

Land Registration Act 2012

0

National Rating Bill, 2022: A Revenue Generating Tool for County Governments

Uncategorized

Owners of rateables property have an obligation to pay land rates to the County
Government. The Counties’ only recourse, in case of unpaid land rates, is usually
issuance of waivers to property and land owners to clear unpaid land rates. This
recourse promotes compliance however, it denies the county internal revenues.
The National Rating Bill, 2022 plans to empower the 47 county governments to seize
and sell the property and land of defaulters upon the expiry of a 60-day notice to
clear their dues. The County government is required to adhere to the procedures in
the Bill to recover the rates due. This is an efficient way of increasing the revenue for
the county.


The Bill requires the rates to be reviewed after every five years thus ensuring the
rates are charged at market value. This move also entitles county governments to be
recognized as beneficiaries in succession matters where the property has unpaid
land rates. The Bill has passed the first reading at the National Assembly.

For More Information Please contact

Benson.ngugi@attorneysafrica.com

arthur.igeria@attorneysafrica.com

0

KENYA’S INSTITUTIONAL ELECTORAL FRAMEWORK

Legal Facts

The election landscape in Kenya has had many ups and downs resulting from the country’s evolving institutional dynamics since the 2007 election, which triggered unprecedented post-electoral violence. These dynamics are driven in particular by the promulgation of a new constitution in 2010. Many of its provisions regarding the bodies responsible for managing the election and adjudicating any disputes continue to underscore many opportunities and challenges.

The constitutional reform process itself was enacted on the heels of a contested result in the December 2007 election between then-president Mwai Kibaki and opposition leader Raila Odinga. Odinga cried foul on Kibaki’s certified victory, resulting in post-election clashes.

The fighting and ensuing political stalemate ended in February 2008 with the formation of a power-sharing Government of National Unity under both Mwai Kibaki and Raila Odinga. This resulted in the promulgation of the 2010 Constitution. The constitution provides two relevant groupings of institutional reforms. These were designed to improve and streamline the electoral process to prevent another 2007-style debacle. The results are mixed and shall be explained hereunder.

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION

The 2010 constitution overhauled the institution responsible for managing the vote and certifying the outcome. A new Independent Electoral and Boundaries Commission replaced the Electoral Commission of Kenya. The constitution and subsequent legislation improved managerial oversight and operations by specifying that the new electoral commission’s appointment of commissioners must be non-partisan. The institution is also empowered to regulate political party activities and implement procedures to improve voter registration and voting procedures.

Most critically, it is charged with the tabulation, transmission and certification of results.

The ability of the Independent Electoral and Boundaries Commission to oversee a robust election under the new constitution has been undermined by a number of what seem to be errors. Some were unforced, some forced. Some were of their own doing and some not.

For example, in 2013 and 2017 the commission was beset by scandals over the tendering processes of sensitive election materials and technologies. These are often procured from suppliers abroad. Some of these actions probably arise from compressed timelines and uncertain budgets. But others imply improper actions by commission staff and political agents trying to influence it.

The commission has turned to new technologies to improve the voting and tabulation of results. These include the introduction of biometric voter registration and the Kenya Integrated Election Management System. In 2013, the biometric system failed. This was due to the inability of laptops and fingerprint scanners to work properly or receive power at many polling stations.

The election management system is probably the most controversial and consequential aspect of the commission’s reliance on technology. It was designed to improve the transmission of results from polling stations to the commission’s headquarters. But many kits failed in 2013 and 2017. This was as a result of intentional or unintentional user error, network connectivity problems and/or cyber-hacking.

The commission improved transparency in 2022 by demonstrating to the public how the results transmission works and performing a pre-election nation-wide field-test of the management system.  

THE SUPREME COURT

The second constitutional reform involved the dispute mechanisms available to contest results. The root cause of the post 2007 election violence was due to the fact that the Raila led faction did not see any other legal avenues to contest the election. In response, the 2010 constitution provided for numerous reforms to the judicial branch. It specifically empowers a Supreme Court to hear and be the final arbiter on all electoral petitions.

In 2013, the court heard his petition but ruled in favour of the Independent Electoral and Boundaries Commission and certified Uhuru’s victory. Raila accepted the outcome of the Court and the first step of “post-election peace” was successful.

In 2017, the court shocked the country when it ruled against the commission’s certification of Kenyatta’s re-election and nullified the presidential result. The verdict was based on evidence from petitions and its own investigation. On one hand, this unprecedented action demonstrated the Kenyan judiciary’s newfound independence and willingness to take aggressive action to improve electoral integrity. On the other, it helped to quell tensions between Odinga and Kenyatta’s supporters. Although the nullification required a revote, the commission proved inept at providing credible improvements. Odinga boycotted the re-run.

What next

The new constitution enhances election management, some of which the commission has improved on from its predecessor. But challenges remain. And unlike 2007, the constitution also provides new dispute mechanisms to encourage any petitioners to pursue legal, as opposed to violent, objections to results.

The lessons from 2013 and 2017 indicate that the media, parties, civil society and citizens should be as vigilant as ever. If the commission can improve its performance, the Supreme Court will simply become the “arbiter of last resort” rather than the “go-to” solution for the losing side.

For More Information Please Contact

Mavin.macharia@attorneysafrica.com

Info@attorneysafrica.com

1 2 3