A petitioner has challenged the authority of the Data Protection Commissioner (ODPC) to hear and determine cases involving violations of personal data and privacy rights.
In an urgent petition, Henry Stephen Arunda, a Nairobi-based lawyer, argued that the Office of the Data Protection Commissioner has unlawfully assumed the jurisdiction of the High Court in matters concerning fundamental rights and freedoms. According to Arunda, the Data Protection Commissioner’s powers to investigate and make determinations on privacy rights are unconstitutional.
“The unconstitutional powers of the Data Protection Commission to investigate and make determinations on the right to privacy are akin to amending the Constitution, which contradicts Article 255(1)(e) of the Constitution,” Arunda stated in his petition.
Arunda highlighted that Article 255 of the Constitution prohibits any amendments to the Bill of Rights unless through a referendum. He further contended that the ODPC, by deciding on issues related to personal data and privacy rights, is acting outside its legal scope, particularly in light of Regulation 14(5) of the Data Protection (Complaints Handling and Enforcement Procedures) of 2021. This regulation states that the decision of the Data Protection Commissioner is binding and enforceable as a court order, a provision Arunda believes places the Commissioner on equal footing with the High Court.
The lawyer argued that this regulation contradicts Article 23(1) of the Constitution, which grants the High Court exclusive authority to hear applications concerning the denial, violation, infringement, or threat to fundamental rights and freedoms enshrined in the Bill of Rights.
Furthermore, Arunda noted that the ODPC operates as an extension of the executive arm of the government, with the Public Service Commission (PSC) being the appointing authority. He argued that this makes the Data Protection Commissioner a state office, not a judicial body.
“A jurisdiction established by the Constitution cannot be delegated further by any statute,” Arunda argued, emphasizing that only the High Court should have the authority to resolve these matters.
The lawyer is seeking a court ruling to determine whether the ODPC functions as a subordinate court or tribunal and whether it has overstepped its jurisdiction by assuming powers reserved for the High Court. He wants the court to decide whether the ODPC’s actions in handling privacy rights violations infringe upon the constitutional authority of the judiciary.
High Court Judge Bahati Mwamuye certified the case as urgent and instructed Arunda to serve the relevant documents to the ODPC and the Attorney General, Dorcas Oduor, immediately.
The judge scheduled the case for a hearing on January 17, 2025.
