A scenario similar to the 2017 presidential election petition is playing out at the High Court with a State agency prevaricating on a court order granting 25 petitioners from Wajir, Mandera and Garissa access to its census servers.
And the same agency won’t provide the census evidence contained in tablets used to conduct the exercise in the three counties because they have been disposed, donated to foreign countries, or lent out to other government agencies after the data the petitioners are seeking was erased.
The dispute pitting the northern Kenya leadership against the Kenya National Bureau of Statistics (KNBS) over the integrity of the 2019 population census has roped in three governors, MPs and political leaders from the region.
On June 29, Justice Charles Kariuki sitting in Garissa ordered the government to enable the petitioners to access the central servers and the tablets used to collect data in Mandera West, Banisa, Lafey, Mandera East, Mandera North, Garissa Township, Balambala, Lagdera, Daadab, Eldas, Tarbaj, Wajir East, Wajir West and Wajir North.
But KNBS Director General Zachary Mwangi filed an affidavit citing data protection regulations. “Access to KNBS central servers as ordered by the court would amount to the intrusion of privacy of the data subjects contrary to provisions of Article 31 of the Constitution and Part IV of the Data Protection Act.”
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Mwangi says the agency would also be violating the confidentiality of the KNBS system contrary to the 6th Fundamental Principle of Official Statistics under the UN Fundamental Principles of Official Statistics. “Access to such information is also limited by Section 6 of the Access to Information Act,” he adds.
As regards accessing the tablets used to collect the statistics, Mwangi has told the court that the KNBS board had in December of last year authorised a lending arrangement where the gadgets were donated to government agencies and two countries that are holding their census.
And because the agency was following the county codes in disposing the gadgets, the tablets used in the three counties were the first to be erased in an exercise that commenced on May 19. By June 16, a total of 5,000 tablets had been reconfigured to factory settings.
Garissa’s county code is 007, Wajir’s is 008 while Mandera’s is 009.
The minutes of a Kenya Population and Health Council logistics meeting dated May 19 tabled in court show that the team agreed to follow the county codes with the first 10 counties being “the pilot of the system with priority to the counties with the lowest numbers”.
“We are therefore constrained in so far as the implementation of the order issued by this court is concerned, to the extent of granting the petitioners access to the tablets/devices used in collecting data during the 2019 census,” Mwangi says.
According to KNBS board minutes, 164,700 tablets, 125,000 power banks and 30,000 solar chargers had been deployed for the exercise. All data in the devices was transferred to the KNBS server housed at Real Towers, and backed up in two off-site locations.
The rationale for disposing the tablets is that they were taking up space meant for a library and cartography laboratory, flooding at the storage facility had already damaged some of the properties, continued storage for long would render them obsolete, and the risk of an explosion because they were stacked together.
“The tablets are holding confidential records of the Kenyan population. Prior to their disposal all of these records will be erased from them. The KNBS ICT Division will use data purging strategies and techniques which will ensure that all the records are permanently erased,” read the board minutes from December 5, last year.
Consequently, the board approved their disposal as follows; 10,000 to be retained by KNBS, 25,000 to the Ministry of Interior for use by the Kenya Police Service, 1,500 to the Ministry of Agriculture for use in farmer registration, 70,000 to Ghana and 5,000 to Botswana for census, and the remaining 54,847 to other government ministries.
On May 12, Sports, Culture and Heritage Cabinet Secretary Amina Mohamed, with the concurrence of the Commission on Administrative Action, approved the disposal of the data contained in the gadgets under Section 7 of the Public Archives and Documentation Service Act Cap 19.
“Please complete the enclosed records destruction certificate in duplicate and return the original to this office and keep the duplicate for your records,” said Richard Wato, signing for the director of the Kenya National Archives and Documentation Service.
In June, and while issuing the order, the Garissa High Court had rejected the reasons cited by KNBS in dithering on granting access to servers. These included the arguments on limitations of right of access to information.
“I agree with submissions of Mr Biriq as was held by the Chief Justice of South Africa in the case My Vote vs Minister of Justice that if secrecy thrives, then our constitutional project would be at risk of being betrayed or shipwrecked,” the judge ruled.
Abdiwahid Biriq is the lead lawyer in the petition and has previously won a case against the State with regard to the 2009 census.
The judge said since the request is meant to “help secure and protect the rights and freedoms” of the same Constitution, he would grant it. He refused to grant a conservation order on the use of the figures given that they were not being deployed in determination of the third generation formula.
He also did not stop their use in the upcoming delimitation of boundaries because the petition is likely to have been heard and determined before the process starts. He ordered that the petitioners, via their appointed IT experts - and under the supervision of the court - be allowed access to the servers.
But now KNBS wants the same court to set aside those orders, saying they are not implementable.