Transport regulator accused of overstepping its mandate

Lawrence Bwire Mbuga, Uber Driver-partner gets into his new car.
The National Transport and Safety Authority (NTSA) could be overstepping its mandate in introducing new legislative proposals for digital ride-hailing apps.

Analysts say the draft NTSA Operation of Digital Hailing Operators Regulations 2019 confers new powers on the transport regulator that should be undertaken by more relevant state organs.

Among the proposals in the new law is to have taxi hailing operators like Uber, Little and Bolt submit a list of all the drivers on their staff as well as a data security policy that ensures protection of the drivers’ and passengers’ personal information.

The regulations have received mixed reactions across the sector, with some accusing NTSA of stepping into the mandate of other agencies.

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"NTSA must adhere to the Data Protection Act 2019,” says Bitange Ndemo, a professor at the University of Nairobi. “They cannot create new regulations that are outside their purview.”

The Data Protection Act 2019 proposes the establishment of a commission that will be the state regulator on matters concerning data privacy violations that cut across several sectors.

According to the Act, the Data Protection Commission will create and maintain a database of all entities that collect, process and store the personal data of Kenyans both in the public and private sectors.

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The commission will be the enforcing agency of data protection laws and will be charged with formulating and implementing data awareness programmes as well as monitor and investigate complaints regarding violation of the laws.

However, the office of the data commissioner is yet to be established despite the law’s enactment last year, leaving a gap where various state agencies seek to institute their own policies.

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At the same time, this has left Kenyan users exposed to fraudsters who have capitalised on the lack of oversight to make a killing by  exploiting Kenyans’ personal data.

A study conducted by the Kenyan government, Financial Sector Deepening (FSD) and the Bill and Melinda Gates Foundation released last month found dozens of mobile lending apps on the leading App stores are set up to harvest consumers’ mobile money transaction data.   

Out of 110 digital credit products available as at September 2018, close to half of them were deactivated after several weeks or months after harvesting users' data.

"In September 2018, the two main app stores had approximately 110 mobile apps provided by 74 unique developers listed as offering digital credit,” said the report in part.

“As at April 2019, 65 of these apps had been pulled down from the app stores, while 47 new ones developed by 43 unique developers had emerged. There was an unprecedented rise in the number of apps published in 2018, from 14 in 2017 to 49 in 2018.”

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NTSA’s rule also seeks to enforce tax compliance among taxi hailing service providers who have in recent years come under the cross-hairs of the government for underpaying drivers and remitting little tax.

In April last year, Nairobi Senator Johnson Sakaja argued that digital players like Uber and Bolt or Taxify do not distribute the profits they earn to tax authorities or their drivers in the country. 

"According to several testimonies – and I have had several meetings with these drivers of various hailing cabs – the drivers have to work extremely long hours just to make a basic living, with some taking home less than the average minimum wage after paying their running costs,” Sakaja told Parliament.

"The fares being charged by these hailing cabs companies are extremely low and below the minimum rates prescribed by the Automobile Association and the government, and the commissions taken are too high,” he said. “As soon as a customer pays for an Uber ride, 25 per cent immediately goes to the company in the Netherlands and nothing comes to our country.”

Sakaja and fellow MPs argued for stakeholder consultation with the Transport ministry, the Competition Authority of Kenya and the Treasury to look into a policy that is favourable to all parties.

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If NTSA’s new regulations are approved, taxi-hailing firms will have to provide certified copies of valid and binding agreements between them and each of the registered owners of the vehicles in their fleet before being licensed.

The firms will also be required to provide a current list of its directors as well as copy of personal identification number and/ or tax compliance certificate issued by the KRA. 

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National Transport and Safety AuthorityNTSABitange Ndemo