Lawyer challenges data commissioner powers
Data Commissioner Immaculate Kassait.
What you need to know:
- The Data Protection Commissioner has been investigating, hearing and determining issues of violation, infringement and threats to personal data and privacy rights and issuing awards.
- The lawyer argues that it is only the High Court that is conferred with the powers to hear and determine application for a denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights.
A Nairobi lawyer has challenged the powers of Data Protection Commissioner to hear and determine cases touching on personal data and violation of privacy rights.
In the petition certified as urgent, Mr Henry Stephen Arunda said the Office of Data Protection Commissioner (ODPC) had unconstitutionally grabbed the jurisdiction of the High Court to hear matters of fundamental rights and freedoms.
“The unconstitutional powers of the office of the Data Protection Commission to investigate and find a determination on the right to privacy is akin amending the constitution contrary to Article 255 (1)(e) of the constitution,” he said.
The lawyer pointed out that the article prohibits amendment of the Bill of Rights unless by a referendum.
High Court judge Bahati Mwamuye on Monday certified the case as urgent and directed Mr Arunda to serve the court documents of the ODPC and the Attorney General Dorcas Oduor immediately.
The judge directed the case to be heard on January 17.
Mr Arunda said the ODPC has been acting against the law by determining issues of personal data and privacy rights.
The lawyer said regulation 14(5) of the Data Protection (Complaints Handling and Enforcement Procedures) of 2021, states that the decision of the Data Protection Commissioner is binding on the parties and shall be enforced as court order.
He said the regulation places the Data Commissioner on the same pedestal as the High Court contrary to Article 23(1) of the constitution.
Data Protection Commissioner has been investigating, hearing and determining issues of violation, infringement and threats to personal data and privacy rights and issuing awards.
The lawyer argues that it is only the High Court that is conferred with the powers to hear and determine application for a denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights.
“The office of the Data Protection Commissioner is not a court, neither is it a tribunal categorising it as a subordinate court under Article 169(2) of the constitution,” Mr Arunda said.
Mr Arunda said pursuant to Article 19(1) of the constitution, the Bill of Rights form an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.
“The petitioner contends that the Office of the Data Protection Commissioner has illegally usurped the jurisdiction of the High Court to hear and make a determination including issuing enforceable award for infringement of personal data and privacy under Article 31 of the constitution," he added”
Mr Arunda pointed out that being a state office, the ODPC was an extension of the executive arm of the government by virtue of the Public Service Commission (PSC) being the appointing authority.
He said, the High Court under Article 165(b) is cloaked with the jurisdiction to determine the question whether a right or a fundamental freedom under the Bill of Rights has been denied, violated or infringed.
“A jurisdiction established by the constitution cannot further be delegated by a statute whatsoever,” he said.
The lawyer wants the court to determine whether the ODPC is a subordinate court or a tribunal and whether it has usurped the jurisdiction of the High Court to determine applications for redress of a denial, violation or infringement of a right or fundamental freedom in the Bill of Rights.
