UNIVERSITY OF NAIROBI

SCHOOL OF LAW
GPR: 325
LAW SCIENCE AND TECHNOLOGY
G34/38118/2016: SHALOM RUGARI
QUESTION 1
A. RIGHT TO PRIVACY: This right is provided for in article 31 of the Constitution1
which stipulates that: -Every person has the right to privacy, which includes the
right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs
unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
Due to the constant innovation and invention in the technological sector, the law has had to
evolve with these changing trends to regulate the use of technology in relation to privacy
since it is a human right according to article 12 of the UDHR2 and is further reiterated in
article 31 of the Constitution3 as aforementioned. With the emergency of technologies like
the Internet of Things, system software, application software etc where we see that a lot of
private data is required before a person can access these platforms. The law then must come
in to regulate how this data is processed and protected to ensure the promotion of the right to
privacy. A legal framework in the Kenyan context has been established to put measures in
place ensuring data protection and remedies if there is a breach of that. The Data Protection
Act,4 provides for the protection of data and privacy. Remedies are also stipulated in this Act,
should there be a breach. The Act also gives powers to the Data Commissioner under section
8[1(f)]5 to receive and investigate any complaint by any person on infringements of the rights
under the Act; however some cases can be taken to the courts like the case of Republic v Joe
Mucheru, Cabinet Secretary Ministry of Information Communication and Technology
& 2 others6 which was filed in the High Court under the Data Protection Act.
B. POLITICAL RIGHTS: These rights are catered for under article 38 of the Constitution7
which stipulates that: -
(1) Every citizen is free to make political choices, which includes the right—
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections based on universal
suffrage and the free expression of the will of the electors for—
(a) any elective public body or office established under this Constitution; or
(b) any office of any political party of which the citizen is a member.
(3) Every adult citizen has the right, without unreasonable restrictions—
(a) to be registered as a voter;

1
The Constitution of Kenya, 2010
2
The Universal Human Rights Declaration, 1948
3
The Constitution of Kenya, 2010
4
The Data Protection Act, 2019
5
Ibid
6
Republic v Joe Mucheru, Cabinet Secretary Ministry of Information Communication and Technology & 2
others Ex Parte Katiba Institute & another; Immaculate Kasait, Data Commissioner (Interested Party) [2021]
eKLR
7
The Constitution of Kenya, 2010
 (b) to vote by secret ballot in any election or referendum; and The Constitution of
Kenya 29
(c) to be a candidate for public office, or office within a political party of which
the citizen is a member and, if elected, to hold office.
These rights are declared by article 21 of the UDHR8 but are further expounded on in the
preamble of the International Covenant on Civil and Political Rights9 read together with
article 1&3. There has been an emergence of e-ballot software where a person can be
registered and cast their vote through an e-ballot system, however this poses a threat to the
secrecy of those votes which have been cast using the e-ballot system. In the Kenyan context,
the state has tried to eliminate this mischief by enacting the Data Protection Act to ensure
the privacy of such data collected and provide remedies if this right is infringed. Under
section 8 of the Data Protection Act,10 the office of the Data Commissioner has the powers
to exercise oversight functions on data processing operations, carry out inspections of public
and private entities with a view to evaluating the processing of personal data, conduct an
assessment, on its own initiative of a public or private body, or at the request of a private or
public body for the purpose of ascertaining whether information is processed according to the
provisions of the Data Protection Act or any other relevant law, and also to undertake
research on developments in data processing of personal data and ensure that there is no
significant risk or adverse effect of any developments on the privacy of individuals. This
mandate given to the office of the Data Commissioner helps create an oversight function
including oversight over elections those collected using an e-ballot and those that are not to
ensure to ensure the safety, privacy and validity of the voting processes. There are also
certain cases where the party that certain individuals belong to is misrepresented by the party
officials or otherwise, or a candidate in an election accesses voters’ information without their
knowledge. According to section 26 of the Data Protection Act,11 a subject has the right to
correct any personal data that is misrepresented about them like in the case of political parties
erring in their registers of members. This section also provides remedies for data subjects
where there has been illegal access of their personal data.
C. FREEDOM OF EXPRESSION: This fundamental freedom is also guaranteed under
article 33 of the Constitution12 (subject to limitations) which states that: -
(1) Every person has the right to freedom of expression, which includes—
(a) freedom to seek, receive or impart information or ideas;
(b) freedom of artistic creativity; and
(c) academic freedom and freedom of scientific research.
(2) The right to freedom of expression does not extend to—
(a) propaganda for war;
(b) incitement to violence;
(c) hate speech; or
(d) advocacy of hatred that—

8
The Universal Human Rights Declaration, 1948
9
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) 
10
The Data Protection Act, 2019
11
Ibid
12
The Constitution of Kenya, 2010
 (i) constitutes ethnic incitement, vilification of others or incitement to cause harm;
or
(ii) is based on any ground of discrimination specified or contemplated in Article
27 (4).
(3) In the exercise of the right to freedom of expression, every person shall respect the
rights and reputation of others.
Freedom of expression is guaranteed as a human right under article 19 of the UDHR.13The
invention of the Internet of Things, application software which has given rise to all these
social media platforms like Meta (Facebook), Twitter, WhatsApp, Telegram etc. Individuals
have recently been using these platforms to express their views about different topics which
views sometimes infringe on the rights of other individuals. This is where the law then comes
in to regulate how views should be expressed without necessarily infringing on the rights of
other individuals like in the case of Robert Alai v The Hon Attorney General & another14
where the petitioner was held criminally liable for a publication he put up on his Twitter
handle. In the Kenyan context, a legal framework has not been established to regulate the
proper usage of these social media platforms in the context of promoting the fundamental
freedom of expression and at the same time not infringing on the rights of other individuals
however, the courts have helped to interpret the provisions of article 33 of the Constitution15
like in the case of Jacqueline Okuta & Another v Attorney General & 2 others16 where
the court stated that “the freedom of expression is secured under Article 33 of the constitution
and for it to be limited; limitation must be within the scope and ambit of the provisions of
Article 24 of the Constitution.”
D. RIGHT TO LIFE: This right is also provided for under article 26 of the Constitution17
which stipulates that: -
(1) Every person has the right to life.
(2) The life of a person begins at conception.
(3) A person shall not be deprived of life intentionally, except to the extent authorised
by this Constitution or other written law.
(4) Abortion is not permitted unless, in the opinion of a trained health professional,
there is need for emergency treatment, or the life or health of the mother is in danger,
or if permitted by any other written law.
This right is declared a human right by article 3 of the UDHR;18 science and technology have
been very instrumental in raising the bar with regards to reproductive health; whether its
providing solutions to women who are unable to carry their own pregnancies, finding
alternative methods of merging eggs and sperms to create a human life (embryos) besides the
natural method, preservation of those embryos or providing better methods of abortion. Since
life begins at conception according to the constitution of Kenya as aforesaid; abortion which
eliminates the life of an embryo, can be construed as to violate that human right. However,
the constitution makes abortion illegal except if there’s need for emergency treatment (in the

13
The Universal Human Rights Declaration, 1948
14
Robert Alai v The Hon Attorney General & another [2017] eKLR
15
The Kenya Constitution, 2010
16
Jacquline Okota & Another v Attorney General & 2 others [2017] eKLR
17
The Constitution of Kenya, 2010
18
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR)
opinion of a trained professional), the life or health of the mother is in danger, or if it is
permitted by any other written law. The state also protects the right to life by putting criminal
liability for those who take a human life in the Penal Code.19 Particularly in sections 204,
205, 209, 210, 226 etc...

QUESTION 2
a) Article 31 of the Constitution only provides for privacy regarding personal
information (family, private affairs, possessions, and private communications) and
does not talk about data in specifity; the Data Protection Act is only mandated to
protect personal data (specifically). Article 2 of the Convention on Biological
Diversity20 states that: -“Biological diversity” means the variability among living
organisms from all sources including, inter alia, terrestrial, marine and other aquatic
ecosystems and the ecological complexes of which they are part: this includes
diversity within species, between species and of ecosystems. “Biological resources”
includes genetic resources, organisms or parts thereof, populations, or any other
biotic component of ecosystems with actual or potential use or value for humanity.
The data which Quattro Agrobiotech (data collected in an individual’s farm
concerning farm soil moisture and texture, rainfall patterns, temperature and crop
yields) seeks to collect is inclusive in the aforementioned definition according to the
Convention on Biological Diversity; however, they are required by section 12(1) of
the Science Technology and Innovation Act21 to obtain a licence before conducting
any kind of scientific research in Kenya. Quattro Agrobiotech will need to first obtain
that licence before they can collect the data to use it for the purposes of their m-
Kulima technology since the said technology can be classified under the biological
diversity and resources in the Convention on Biological Diversity, which contents are
also inclusive under section 15[3(e)] of the Science Technology and Innovation
Act22 that have to be sought a licence for. Section 12(3) of the Science Technology
and Innovation Act23 also requires any person undertaking or intending to undertake
research in science and technology in the country, or who accesses, handles, or
transfers any material or technology or moves it within, from or into the country, shall
apply to the Commissioner for Science Technology and Innovation for the grant of a
licence. Failure to do so brings criminal and civil liability to Quattro Agrobiotech
under section 15[1(b)] of the Science Technology and Innovation Act.24

b) Quattro Agrobiotech will need to seek a licence under section 12(1) of the Science
Technology and Innovation Act25 before they can start clinical trials with real
californicus in the Kenyan market. According to section 15[3(e)] of the Science
Technology and Innovation Act26 this licence is also inclusive of contents of the
19
The Penal Code, 2012
20
The Convention on Biological Diversity of 5 June 1992 (1760 U.N.T.S. 69)
21
The Science Technology and Innovation Act, 2013
22
Ibid
23
Ibid
24
Ibid
25
Ibid
26
Ibid
 Biosafety Act.27 Section 2 of the Biosafety Act28 defines a genetically modified
organism as any organism that possesses a novel combination of genetic material
obtained through the use of modern biotechnology techniques; in this case, real
californicus matches that description. The procedure to obtain that licence is set out in
section 5 of the Science, Technology and Innovation Regulations.29 As aforesaid,
the Act under section 15[1(b)]30 ensures compliance by stating that: -
(1) Any person who—
(a) accesses, handles, transacts, transfers or moves any specified
technology or any material necessary for scientific research within,
into or from Kenya without a licence issued under this Act; or
(b) contravenes the provisions of section 12,
commits an offence and shall, in addition to any other penalty which
may be provided for in this Act or any other written law, be liable
on conviction to a fine not exceeding five million shillings or to
imprisonment for a term not exceeding four years, or both.
(2) The Court convicting a person under subsection (1) may in addition to
any penalty imposed thereunder, order the confiscation of the materials in
respect
of which the offence is committed, and may bar the person so convicted from
undertaking any further research in the country or transferring or moving any
substance or material in or out of the country.

c) According to section 7(1) of the Biosafety Act,31 genetically modified organisms can
enter the Kenyan market but after application and risk assessment. Under section
21(1) of the Biosafety Act,32 Quattro Agrobiotech will need to place an application
before they can place real californicus on the Kenyan market and request for an
undertaking of risk assessment under section 27 of the Biosafety Act.33 Kenyan Laws
cannot be eased because the law comes in to protect the general human health of
Kenyans as stated in section 4 of the Biosafety Act.34According to the judgement
delivered by the European Court of Justice in case C-528/16 Confédération
paysanne is a French agricultural union which defends the interests of small-scale
farming, together with eight other associations, brought an action before the Conseil
d’État (Council of State, France) in order to contest the French legislation which
exempts organisms obtained by mutagenesis from the obligations imposed by the
directive on genetically modified organisms (GMOs);35 the court held that “it follows
27
The Biosafety Act, 2018
28
Ibid
29
The Science, Technology and Innovation (Researching Licensing) Regulations, 2014
30
The Science Technology and Innovation Act, 2013
31
The Biosafety Act, 2018
32
Ibid
33
Ibid
34
Ibid
35
Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate
release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC
(OJ 2001 L 106, p. 1)
 that the European Genetically Modified Organisms (GMO) Directive is also
applicable to organisms obtained by mutagenesis techniques that have emerged since
its adoption.”36 This case gives an example of how there is a genuine concern about
the introduction of GMOs into the environment around the world especially like in
first world countries in Europe and not just in Kenya; which supports the law’s stance
to protect human health in that regard. Also, in the case of Dewayne Johnson v.
Monsanto Co37the appellant contracted non-Hodgkin's lymphoma because of using a
herbicide manufactured by the defendant company despite all the reports that were
carried out by their toxicologist warning them of the genotoxicity of glyphosate(the
herbicide); Genotoxicity refers to the possibility of a chemical agent damaging
genetic information within a cell, causing mutations that can lead to cancer. The
company went ahead to launch the product into the market despite its devastating
effects to human health; this case could help reaffirm Kenya’s decision to prioritize
the protection of human health when making decisions to introduce GMOs into the
Kenyan market.

Bibliography

Confédération paysanne and Others v Premier ministre and Ministre de l’Agriculture, de

36
Confédération paysanne and Others v Premier ministre and Ministre de l’Agriculture, de l’Agroalimentaire et
de la Forêt
37
Dewayne Johnson v. Monsanto Co CGC-16-550128, California Superior Court, County of San Francisco (San
Francisco
Dewayne Johnson v. Monsanto Co CGC-16-550128, California Superior Court, County of
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the deliberate release into the environment of genetically modified organisms and repealing
Council Directive 90/220/EEC (OJ 2001 L 106, p. 1)
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered
into force 23 March 1976) 999 UNTS 171 (ICCPR) 
Jacquline Okota & Another v Attorney General & 2 others [2017] eKLR
Robert Alai v The Hon Attorney General & another [2017] eKLR
The Biosafety Act, 2018
The Convention on Biological Diversity of 5 June 1992 (1760 U.N.T.S. 69)
The Data Protection Act, 2019
The Kenya Constitution, 2010
The Penal Code, 2012
The Science Technology and Innovation Act, 2013
The Science, Technology and Innovation (Researching Licensing) Regulations, 2014
The Universal Human Rights Declaration, 1948
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)
(UDHR)