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Regulating short-stay homes may violate human rights, fuel other crimes

Opinion
 Short-stay home hosts are required to register, get licences, and do quality assurance audits by the TRA. [iStockphoto]

As a father of three daughters, an upholder of the law, and a concerned citizen, I'm really disturbed by the recent killings in short-stay accommodations.

The deaths of Starlet Wahu, Rita Waeni and Joan Mbula Nzomo are most saddening. I commend the government for acting swiftly by making laws to regulate short-stay homes.

But as one under oath to uphold the law, I'm also concerned that some of these regulations may infringe on some basic human rights and provide loopholes for other crimes.

Tourism CS Alfred Mutua said recently that the ministry is in the process of reviewing the current Tourism Regulatory Authority (TRA) regulations, and that the revised regulations would soon be subject to public participation.

However, in light of the few cases where proposed laws have been found to be unconstitutional, I feel there is a need to not only revise them but also formulate a legal framework that finds merit in the Constitution.

One of the proposed regulations directs all short-stay homes to have CCTV recording all activities on the premises around the clock.

The practicality of this is that from the moment you set foot on the premises, to the time you leave, each and every action you make is subject to recording.

Article 31 of the Constitution categorically states that “Every person has the right to privacy...” Nobody wants to walk into a private space that is not private, and privacy entails the right to keep one's personal matters secret.

This becomes a problem when you have to disclose things like who you are with, how you are related, and what you will be doing with them during the short stay.

The right to privacy should be a foundational law in guiding the framework, which begs the question, why the exception and is it justified?

Furthermore, the regulation to have CCTV cameras should be supported by the provisions of the Data Protection Act (DPA), 2019.

The footage recorded should be collected for explicit, specified, and legitimate purposes, and processed for the purpose of collection.

This regulation needs to address an individual's right to keep their private affairs away from third parties’ consumption, and protected through anonymisation and pseudonymisation as prescribed by the DPA.

Needless to say, compromising footage (not illegal) in the wrong hands could pave the way for blackmail, extortion, or reputation sabotage, to mention but a few.

The same applies to the recording and temporary withholding of identification documents as stipulated in section 39 (1) of the Private Security Regulation Act (PSRA).

This regulation should be accompanied by a mechanism to destroy the personal data collected as provided by section 39(4) of the PSRA which encourages the destruction of all information (including the personal records obtained from the identification documents) whose purpose and use is completed.

Another pertinent issue that remains unclear is what laws are in place to guarantee the right to life for the guest(s) at a short-stay home.

Considering this is the matter at the centre of it all, it should be clear what State agency is mandated with this task and its capacity to guarantee the right to life.

At the moment, short-stay home hosts are required to register, get licences, and do quality assurance audits by the TRA. As per section 4 of the Tourism Act No. 28, 2011, TRA is mandated to regulate all tourism activities and services in Kenya. It is not clear how this alone will aid in assuring the lives of the guests. 

The regulatory framework should provide clear guidelines for TRA to assure safety. We can begin by specifying the requirements that short-stay accommodations must meet in order to maintain their licences and service provisions.

Factors like locality, size, safety of the building, and the neighbourhood should be considered and thoroughly scrutinised before awarding a licence. 

The short-stay homes regulations are a step in the right direction. The legal framework is, however, not conclusive and requires polishing.

The regulations should be subject to the scrutiny of legislators to gauge their merits and demerits to determine the mode of implementation.

-Mr. Wangai is an Advocate of the High Court, legal consultant, and entrepreneur

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