KRA must keep off M-Pesa

As the government looks for ways to increase revenue and curb tax evasion, Kenya Revenue Authority has announced plans to gain direct and warrantless access to M-Pesa transactions.

While its intentions may be noble, the methods raise serious concerns about data privacy.

In fact, they constitute illegal searches and seizures, contrary to Article 31 of the Constitution and well-established jurisprudence from around the world.

Art. 31 provides for the right to privacy. It states that every person has the right to privacy, which includes the right not to have their person, home or property searched; their possessions seized; information relating to their family or private affairs unnecessarily required or revealed; or the privacy of their communications infringed.

The Data Protection Act,2019 provides that a data subject’s consent must be sought before their data is collected. Section 15 requires data controllers to obtain a court warrant before accessing personal data. This is to ensure the collection, processing and sharing of personal data is necessary and proportionate.

The High Court, in the case of Center for Rights Education and Awareness (CREAW) v Attorney-General [2013], as well as in Maina Kiai v Attorney-General, held that the government’s surveillance of citizens’ communications without a warrant is a violation of the right to privacy protected under the Constitution.

And KRA’s proposal, in the Budget Policy Statement released by the National Treasury last week, ironically came on the eve of Data Protection Week and International Data Protection Day.

In Europe, whose General Data Protection Regulation (GDPR) our Act was largely modelled on, the principle of necessity and proportionality in personal data collection has repeatedly been upheld by the courts when agencies try to access citizens’ telecommunications information without a warrant. 

Granting KRA unfettered access to M-Pesa transactions data without court orders violates constitutional protection against illegal searches and seizures, also provided for under the Constitution.