Leave me alone and just let me be

By Kethi D Kilonzo
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The metadata from each person’s phone reflects a wealth of detail about their familial, political, professional, religious and sexual associations. It reveals an entire mosaic about a person. A vibrant and constantly updated picture of the person’s life.” ­­— Klayman vs Obama, US District Court Columbia.

 

A famous blogger once tweeted that in Kenya telling people that your phone calls are monitored by NIS or the police is now a status symbol. We do take it for granted, and most Kenyans believe, that one of the activities our security forces engage in is listening in to private conversations of persons of interest and monitoring of their Internet activity. Government surveillance that is not subject to legal control and transparency is tantamount to police power and the avenues of misuse are a dime a dozen. If our government resources and personnel are applied to such activities, it is an infringement of our constitutional and fundamental rights to privacy, freedom of speech, religion, association and liberty. It is also not authorised by any law.

The Constitution at Article 31 guarantees and protects the right to privacy. This includes private communication, and information relating to family and private affairs. Unless you are suspected of having committed a crime, your phone calls should not be monitored. If you are so suspected, the police and the NIS must obtain a limited warrant from the High Court before they can listen to your calls. The right to privacy is essential to a free society. It is the right to be left alone. In a free society people need not fear that their conversations and activities are being watched, monitored, questioned, interrogated, or scrutinised.

In police states, by contrast, there is no right to be let alone, and people struggle to organise their lives to avoid the government’s probing eye. If people are fearful that their conversations are being monitored, expressions of doubt about or opposition to current policies and leaders may be chilled, and the democratic process itself may be compromised. All parts of the government, including those that protect our national security, must be subject to the rule of law. Government surveillance that is not authorised by law and subject to transparency and public scrutiny is a threat to democracy itself.

The purposes of surveillance must be legitimate. For this reason, it is important to enact a law with prohibitions and safeguards, designed to reduce the risk that government surveillance will ever be undertaken for illegitimate ends. Legislation should be enacted requiring information about surveillance programmes to be made available to the National Assembly and to the public to the greatest extent possible (subject only to the need to protect classified information). Such a law should authorise telephone, Internet, and other private data providers to disclose to the public general information about orders they receive directing them to provide information to the government. Government surveillance must be directed exclusively at protecting national security interests and must be subject to careful oversight and to the highest degree of transparency.

Public officials should never engage in surveillance in order to monitor or punish perceived political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; or for private purposes and benefit. When Government infringes the right of privacy, the injury spreads far beyond the particular citizens targeted to untold numbers of other Kenyans who may be intimidated.

In an era where the technological capability of Government relentlessly increases, we must be wary about any drift towards “big brother” government.  The time has come that such intrusions be authorised, controlled and subject to public scrutiny through a legal mechanism. The time for Parliament to step in and take legislative action was yesterday.