Striking a balance: navigating the intersection of national security interests’ and the right to privacy in surveillance practices

Abstract

This research examines the balance between national interests and individual privacy rights in surveillance practices within Kenya's legal framework. The study uses the theory of proportionality to examine when fundamental rights are constrained in pursuit of state objectives. It explores Kenya's Constitution, specifically Article 31, which guarantees the right to privacy while permitting lawful limitations under certain circumstances, such as national interest. The paper exposes the gaps in Kenya's legal framework, particularly under Section 6(1) of the Official Secrets Act, which grants discretionary surveillance powers to the Cabinet Secretary for Internal Security to access data without a court order. Its major claim is that the access to data without a high court order is prone to abuse and infringes on citizens' right to privacy. The paper therefore advocates for the introduction of essential checks and balances to prevent potential abuses and ensure accountability in surveillance initiatives. The benefits and harms of surveillance measures are also examined, emphasizing the need for a principled approach to surveillance that prioritizes individual rights and democratic principles while safeguarding national interests’ effectively. The paper further analyzes the existing legal, institutional, and policy frameworks governing data surveillance in Kenya. A comparative study is conducted between the United Kingdom and Kenya. The paper scrutinizes the UK’s Investigatory Powers Act, and further advocates for the incorporation of an Investigatory Powers Commissioner’s Office (I.P.C.O) and Investigatory Powers Tribunal (I.P.T) to enhance oversight mechanisms. This according to the paper, when adopted in the Kenyan dimension would help prevent abuse of investigatory powers by public authorities. The paper draws critical findings which are directed towards enlightening policy makers, lawyers, adjudicators, and scholars, enriching the ongoing discourse surrounding safeguarding privacy rights amidst increasing state surveillance. Key words: Surveillance, Privacy, National Interest, Official Secrets Act