The Avid Readers Forum held on Wednesday, 23rd of July 2025, as part of the Katiba @15 series commemorating 15 years since the promulgation of Kenya’s 2010 Constitution, focused on the emerging domain of fourth-generation rights, particularly those related to the digital age. Moderated by Mr Thaiya Jesse, the session featured two panelists: Mr. George Kegoro, Executive Director of the Open Society Initiative for Eastern Africa, and Mr. Dennis Nkarichia, an associate at Mohammed Muigai LLP and a lecturer at Kabarak Law School. Their discussion explored how Kenya’s 2010 Constitution accommodates evolving digital rights, the legislative and jurisprudential strides in this area, and the challenges that remain, particularly around trust, access, and accountability in digital governance.
Discussion
Mr Kegoro
The session began with an overview of the historical context, contrasting the pre-2010 constitutional framework with the current one. Mr. Kegoro highlighted that the pre-2010 Constitution lacked provisions for what are now recognized as fourth-generation rights, such as access to information, data protection, and online identity. These rights emerged in response to technological advancements and environmental challenges, unlike the earlier generations of political, socio-economic, and associational rights. He recounted his experience advocating for access to information as a statutory right during his tenure at the Kenyan section of the International Commission of Jurists. He avers that the 2007 post-election violence catalyzed the push for a new constitution, which unexpectedly elevated access to information to a constitutional right under Article 35, surpassing initial advocacy goals.
Mr Nkarichia
Mr. Nkarichia elaborated on the conceptual shift in the 2010 Constitution, noting that the older 1963 Constitution framed rights as protections granted by the state, subject to its discretion. In contrast, the 2010 Constitution recognizes rights as inherent to human beings, not state-given privileges. This shift is evident in the transition from “protection from” to “the right to” in the constitutional text, emphasizing that rights exist by virtue of one’s humanity. He described the generational evolution of rights as somewhat artificial, rooted in post-World War II efforts to advance societal freedoms, with fourth-generation rights responding to the transformative role of technology in socio-economic and political interactions.
Articles 19 and 20 of the 2010 Constitution were identified as pivotal for accommodating emerging rights. Mr. Kegoro explained that these articles mark a departure from the old constitution’s restrictive approach, which included clawback clauses that qualified rights, such as allowing the death penalty to coexist with the right to life or sedition laws to limit freedom of expression. The 2010 Constitution removes such qualifications, providing an omnibus framework for interpreting rights in favor of the individual. It also reforms access to justice by eliminating restrictive procedural barriers like locus standi, which previously hindered citizens from seeking redress due to the absence of judicial rules. This progressive framework ensures that the lack of procedural rules does not bar access to justice, a significant improvement over the pre-2010 era.
Legislative and jurisprudential progress
The discussion then shifted to legislative and judicial advancements, particularly the Data Protection Act of 2019. Mr. Nkarichia emphasized that this act operationalizes the constitutional right to privacy in the digital era, recognizing data as the “new oil” and interconnectedness as the “new wheel” driving socio-economic progress. The act addresses informed consent, the right to be forgotten, and protections for minors’ data, filling gaps not explicitly covered in the constitution. However, he noted challenges in judicial enforcement, such as the overuse of litigation as “guerilla warfare” to obstruct government actions, sometimes abusively. He also highlighted the socio-economic rights qualifier “to the extent of available resources” as a persistent excuse for government inaction.
Mr. Kegoro addressed the digital transformation of citizen-government interactions, noting that platforms like eCitizen have shifted the relationship from one of citizenship to a customer-like dynamic. This shift diminishes the inherent power of citizens as rights-holders, as they are treated as subscribers to government services. He identified barriers to digital access, including age, poverty, and lack of electricity, which disproportionately affect older citizens and marginalized groups. The Huduma Number initiative was cited as a case study in trust deficits, where the government’s failure to transparently explain its purpose and its forceful implementation despite court injunctions eroded public confidence.
Mr. Nkarichia echoed concerns about trust and accountability, particularly regarding the privatization of digital platforms. He revealed that critical systems like eCitizen and the Transport Integrated Management System (TIMS) are operated by private entities, with unclear ownership, raising questions about who controls citizens’ data. He pointed out that biometric data collection, integral to services like passports and healthcare, is already widespread but lacks robust legal safeguards. This privatization, coupled with a lack of transparency, undermines trust and complicates accountability, as citizens interact with private companies rather than the government directly.
On the question of online expression under Article 33, Mr. Kegoro compared historical forms of protest, such as underground publications, to modern digital activism. He argued that young digital activists, who face state reprisals, deserve the same protection and recognition as past “seditionists” like historical figures who challenged the state through print media. However, digital protests often lack the public and political support afforded to earlier forms of expression, leaving activists vulnerable. Mr. Nkarichia emphasized that freedom of expression should be minimally regulated by the state, as existing laws on libel and defamation provide sufficient deterrence against falsehoods. He cautioned against state overreach, citing examples like Poland, where government control over media stifled dissent, and advocated for self-regulation by media houses through bodies like the Multimedia Appeals Tribunal.
Addressing mass surveillance, Mr. Nkarichia acknowledged its inevitability in a digital society, where purchasing a phone or registering a SIM card subjects individuals to tracking. He recommended opting out of non-essential data-sharing and advocating for regulations that require minimal, justified data collection. However, he noted the difficulty of escaping surveillance, as essential services like healthcare and tax systems collect biometric data by default.
Finally, both panelists underscored the importance of civic engagement and judicial recourse for accountability. Mr. Nkarichia highlighted the judiciary’s role in checking government overreach, citing successful challenges like the Building Bridges Initiative and the Finance Act 2024. However, he stressed that sustainable change requires active civic participation, particularly through voting to hold elected officials accountable. Effective public participation, rather than superficial exercises, was seen as critical to building trust and ensuring policies reflect citizens’ needs.
Conclusion
In conclusion, the session illuminated the transformative potential of Kenya’s 2010 Constitution in recognizing fourth-generation digital rights, supported by legislative measures like the Data Protection Act. However, challenges such as trust deficits, privatized digital platforms, and barriers to access highlight the need for robust accountability mechanisms. The panelists called for active civic engagement, transparent governance, and a strong judiciary to ensure these rights are realized, urging citizens, particularly the youth, to contribute to this evolving field where fresh perspectives can shape the future of digital rights in Kenya.
