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Balancing State Surveillance and Digital Anonymity: The Role of AI in Kenya
Due to the rapidly evolving digital landscape, the emergence of Artificial Intelligence (AI) has revolutionized the dynamics of governance, service provision, and national security framework at an unprecedented pace. In Kenya, AI technologies are being fast deployed by the state for purposes ranging from streamlined public service and intelligent policing to border control and cyber security. The presence of these technologies raises an essential constitutional and jurisprudential issue: is the Kenyan State reconciling its constitutional interest in surveillance with the digital anonymity and privacy right?
The Constitutional Framework
The Kenyan Constitution of 2010 expressly guarantees the right to privacy under Article 31, which includes the right not to have one's person, home, or property searched; not to have information regarding family or private affairs unnecessarily requested or revealed; and the right not to have privacy in communications interfered with. These rights are not absolute and may be subject to limitation under Article 24, provided that the limitation is reasonable and justifiable in a democratic and open society.
Where state surveillance is AI-driven, the test of justifiability is significantly raised. AI systems can gather, process, and analyse vast quantities of data in a short span of time, thereby posing a new threat to individual anonymity and data sovereignty.
Legislative and Policy Interventions
Kenya's lead data protection law, the Data Protection Act, No. 24 of 2019, seeks to regulate the collection and processing of personal data. The Act establishes the Office of the Data Protection Commissioner (ODPC) and mandates bodies-state security organs are not exempt from this—to process data legally, openly, and with due respect to data subjects' rights.
Most notably, Section 51 of the Act permits exemptions in the event of national security but lacks adequate procedural protections or checks and balances when AI is utilized for surveillance.
Concurrently, the Computer Misuse and Cybercrimes Act, No. 5 of 2018 criminalizes interception, interference, and unauthorized access to data. The legislation remains silent on algorithmic surveillance and AI-related threats such as facial recognition and predictive policing, both of which are increasingly being experimented with in Kenya's urban security complex.
AI, Surveillance, and the Anonymity Conundrum
The pseudonymity of internet users is a core feature of digital citizenship and public engagement. Online pseudonymity protects whistle-blowers, human rights defenders, and journalists, who might be persecuted for voicing dissent or opposition to the government. The application of AI for mass surveillance—without transparency or accountability—risks eroding these democratic safeguards.
Kenya has, in recent years, seen the implementation of surveillance technologies such as biometric national identity systems (Huduma Namba), facial recognition CCTV systems, and digital traffic management systems. In the presence of AI, these technologies can easily infringe on the right to anonymity and stifle free expression, contravening Articles 33 and 35 of the Constitution.
Striking the Balance: A Way Forward
In balancing state spying and the right of digital anonymity, a strategy must be multi-pronged:
1. Passage of AI-Specific Laws: Kenya must shift from the current framework to an overreaching regulatory policy on AI encompassing algorithmic accountability, ethical use, and data justice. The act must include mandatory state actor stipulations to perform Human Rights Impact Assessments before deploying AI espionage tools.
2. Judicial Monitoring and Warrants: Decisions and regular scrutiny by a court must guarantee judicial monitoring and warrants utilization of surveillance. Courts must actively step in to scrutinize the proportionality and necessity of AI-driven state surveillance.
3. Purpose Limitation and Data Minimization: State agencies need to be asked to retain only what is truly necessary and maintain it for some clearly specified, lawful purpose. This requirement from Section 25 of the Data Protection Act should be applied strenuously.
4. Transparency and Civic Participation: The public must be adequately informed whenever surveillance technologies are applied. Public engagement in policy-making via hearings and stakeholder consultation is essential in providing legitimacy to state actions.
5. Training and Capacity Building: Public officials and private operators of AI systems must be trained on data protection principles, ethical concerns, and the legal effects of abuse.
Conclusion
As Kenya positions itself as a regional hub of technological innovation, it must remain vigilant against the gradual normalization of digital authoritarianism. The application of AI by the State should not come at the cost of constitutional freedoms. It is not to avoid surveillance altogether but to ground it in a robust legal and ethical basis that upholds human dignity, enables accountability, and maintains digital anonymity.
Article by Aromo Marion,
Legal Assistant, MKA Law