BY SAM ALFAN.
Activist Okiya Omtatah has filed a petition seeking to suspend some sections of Data Protection Act, pending hearing and determination of the case.
Under certificate of urgency, Omtatah is seeking the court to issue an interim order suspending sections 5, 6,51(2) (b) and 54 of the Data Protection Act, 2019.
The activist said the matter is extremely urgent since it seeks to arrest the impending implementation of the Act, which was enacted through unconstitutional process and also contains unconstitutional provisions.
Omtatah said President Uhuru Kenyatta assented to the Act on Friday August 8, 2019 and the new law is set to commence any time upon publication in the Kenya Gazette.
“A data protection law is a very important piece of legislation which is supposed to give further effect to the right to privacy , which is enshrined in Article 31 of the constitution 2010”, adds Omtatah.
The data protection Act,2019 is unconstitutional in it entirety since the senate was locked out of the process of enacting it since it effects the functions and powers devolved to county government’, claims omtatah.
The data protection bill omtatah adds was not subjected to effective public participation as members of the were only given three working days to present their views.
The blanket exception was Kenya Defence forces (KDF), National Intelligence Service (NIS) and National Police Service (NPS) from complying with the Act is a breach of Article 24 of the constitution.
“The constitution is explicit that security organs are subordinate to civilian authority and are therefore subject obey the same including the right to privacy both in their operational matters as while as employees”, claimed Omtatah.
Omtatah said there were two separate data protection bills under consideration in Parliament, the data protection bill 2018 (senate bill) by the senate and the second one the data protection bill, 2019 (the National Assembly) by the National Assembly.
“After the senate bill, which the speakers of the senate and National assembly had jointly certified as a bill concerning functions and powers of county governments, had passed in the senate and had been referred to the National Assembly for further consideration,” he said.
Omtatah further said the leader of majority in the National Assembly Aden Duale introduced a bill which was largely an identical and duplicate bill on the same subject matter, but which, to short circuit the Senate, falsely claimed was a bill not concerning county governments within the meaning of article 110 of the constitution.
