- INSIGHTS FROM THE KENYAN CASE OF RC V KKR PETITION NO. E406 OF 2020 [2021]
BY KONGAI LYDIA
ABSTRACT
Data privacy, a fundamental human right safeguarding individuals from unauthorized access, use, or disclosure of personal information, faces challenges in the context of spousal surveillance. This phenomenon, driven by suspicion, curiosity, or malice, often involves the illicit acquisition of electronic communications and device data. Such instances may yield evidence admissible in legal proceedings, particularly in divorce or custody cases.
This article investigates the admissibility of unlawfully obtained evidence in court, using the Kenyan case of RC v KKR [2021] eKLR as a focal point. The petitioner contested the use of hacked emails, phone messages, and social media accounts by the respondent in a divorce case, raising legal issues encompassing jurisdiction, constitutional interpretation, exhaustion of remedies, and the sub-judice rule. However, the primary focus lies on Article 50(4) of the Kenyan Constitution, empowering courts to reject evidence violating rights in the Bill of Rights. The article scrutinizes the legal framework and judicial precedents concerning the admissibility of unlawfully obtained evidence, as illustrated by the aforementioned case.
By extrapolating insights from the Kenyan case, this article draws attention to Uganda's legal landscape, emphasizing the lax enforcement of data protection laws. Article 27 of the Constitution of Uganda 1995 protects individuals from unlawful interference with personal data or communication. Additionally, the Sections 7 & 9 of the Data Protection Act 2019 prohibits unauthorized collection of personal and special data, with the Computer Misuse (Amendment) Act 2022 unequivocally prohibiting the sharing of unsolicited information unless serving the public interest.
The RC v KKR case reaffirms the significance of Article 50(4) in safeguarding the right to a fair hearing by protecting privacy and property rights. The judgment serves as a critical reference point in understanding the delicate balance between spousal surveillance and individual privacy within the legal landscape.
In this article, I argue that spousal surveillance violates the right to privacy of communication and the right to a fair trial, and that courts should adopt a strict exclusionary rule for illegally obtained evidence, unless there are compelling reasons to admit it. I also suggest some measures to enhance data privacy and security for individuals and couples.
INTRODUCTION
Data privacy is a fundamental human right that protects individuals from unauthorized access, use, or disclosure of their personal information. However, in some cases, spouses may resort to spying on each other’s electronic communications and devices, either out of suspicion, curiosity, or malice. Such spousal surveillance may result in obtaining evidence that could be used in court proceedings, such as divorce or custody cases. This raises several legal and ethical questions, such as: Does spousal surveillance violate the right to privacy of communication? How should courts deal with the admissibility of illegally obtained evidence in court? What are the implications of spousal surveillance for the right to a fair trial? How can data privacy and security be enhanced for individuals and couples?
In this case the respondent, the petitioner in a Divorce Cause filed supplementary affidavit where he sought to adduce 68 pieces of evidence, which the petitioner, RC objected to 45 pieces of that evidence on grounds that they were obtained secretively, intrusively, unauthorized and illegally through secretly installed audio recording devices, unauthorized access to the petitioner’s email and social media accounts, through secretly installed surveillance cameras by a private investigator and all data obtained without the petitioner’s authority.
Furthermore, as we unravel the legal intricacies of the Kenyan case, our discussion extends to the legal landscape of Uganda, shedding light on the challenges in enforcing data protection laws. The Constitution of Uganda 1995, particularly Article 27, serves as a clarion call safeguarding individuals from unlawful interference with personal data or communication. Additionally, the Data Protection Act 2019 lays down strict prohibitions against unauthorized collection of personal and special data, complemented by the unequivocal provisions of the Computer Misuse (Amendment) Act 2022.
In examining the admissibility of unlawfully obtained evidence, this article provides a comprehensive exploration grounded in the protective umbrella of the right to privacy as dictated by the Kenyan Constitution. The RC v KKR case, with its profound implications on the delicate balance between spousal surveillance and individual privacy, sets the stage for a deeper understanding of these legal complexities. Through this exploration, we aim to navigate the complexities of the legal landscape surrounding data privacy, drawing critical insights from the courts decision to enrich our understanding of the evolving dynamics in this field.
FACTUAL BACKGROUND OF THE CASE.
The factual background of the case of RC v KKR [2021] eKLR is as follows;
The petitioner, RC, and the respondent, KKR, were married in 2012 and had two children together. In 2019, their marriage broke down and the respondent filed for divorce and custody of the children in the Chief Magistrate’s Court in Nairobi. The respondent alleged that the petitioner had committed adultery and cruelty, and sought to prove his case by using evidence obtained from hacking the petitioner’s emails, phone messages, social media accounts, flash drive, CCTV footage, and audio and video recordings.The petitioner challenged the admissibility of the evidence, claiming that it violated her right to privacy of communication and the right to a fair trial under the Constitution of Kenya.
LEGAL ISSUES
One of the most important issues deliberated upon by the court in this case was;
1. Whether the evidence illegally obtained may be admitted in civil disputes in Kenya?
The Petitioner was of the position that evidence obtained illegally was inadmissible both in civil and criminal cases. The respondent vehemently denied this position stating that evidence obtained under Article 50(4) of the Kenyan constitution did not apply to civil cases.
Justice A. C. Mrim held as follows;
Article 50(4) states that “Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.
The learned justice further referenced the Constitutional Petition no. 58 of 2014 and petition no 209 of 2014 Okiya Omatatah Okoiti & 2 others v Attorney General & 3 ors [2014]
In this case, it was the position of the respondents that the petition could not be founded on illegally obtained public documents in breach of the constitution and the Evidence Act.
Court observed that use of clandestine means to procure information would heavily compromise Articles 35 and violate the right to privacy under Article 31.
By further buttressing his position on the conduct of litigators who use fraudulent means to obtain evidence; the learned justice referenced the case of Dubai Aluminium Co Ltd vs Al-Alawi (1999) 1 WLR 1964 Rix J stated thus therefore;
It seems to me that if investigative agents employed by solicitors for the purpose of litigation were permitted to breach the provisions of such statutes or to indulge in fraud or impersonation without any consequence at all for the conduct of the litigation, then the courts would be going far to sanction such conduct. Of course, there is always the sanction of prosecutions or civil suits, and those must always remain the primary sanction for any breach of the criminal or civil law. But it seems to me that criminal or fraudulent conduct for the purposes of acquiring evidence in or for litigation cannot properly escape the consequence that any documents generated by or reporting on such conduct and which are relevant to the issues in the case are discoverable and fall outside the legitimate area of legal professional privilege. It is not as though there are not legitimate avenues which can be sought with the aid of the court to investigate (for instance) banking documents.
Furthermore, the learned justice referred to the case of Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others case (supra)
Wherein the Court noted that Article 50 deals generally with ‘fair hearing’ and accords ‘every person’ the right to fair hearing. As such, it is not open for Courts to make a distinction that Article 50(4) was only in respect of criminal cases.
Moreover, Under Article 50(4) if a court determines that admission of evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights would be detrimental to the administration of justice, the court may reject it irrespective of whether it is in connection with a civil or criminal trial.
This view accords, with the Supreme Court decision in Njonjo Mue & Another vs. Chairperson of Independent Electoral and Boundaries Commission & 3 Others [2017] eKLR.
The Court addressed the limitation of the right.
It specifically referred to those instances where such information relates to a matter under deliberation by a person or entity and made following findings: -
This right to access information is, however, not absolute and there may be circumstances in which a person may be denied particular information.
The Supreme Court further spoke to the balance Courts must strike while protecting litigants’ right of access to information under Article 35 against the requirement of adherence to prescribed procedure while seeking such information.
They observed as that there are procedures provided for under the law through which any person who seeks to access information should follow.
Citizen(s) have a duty to follow the prescribed procedure whenever they require access to any such information. This duty cannot be abrogated or derogated from, as any such derogation would lead to a breach and/or violation of the fundamental principles of freedom of access to information provided under the Constitution and the constituting provisions of the law. It is a two-way channel where the right has to be balanced with the obligation to follow due process.
It would be detrimental to the administration of justice and against the principle underlying Article 50(4) of the Constitution to in effect countenance illicit actions by admission of irregularly obtained documents. ( Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others (supra)
Circumstances for Exclusion of such Evidence.
The court thus held that, the evidence must be excluded only if it
(a) renders the trial unfair; or
(b) is otherwise detrimental to the administration of justice.
Evidence must be excluded in all cases where its admission is detrimental to the administration of justice, including the subset of cases where it renders the trial unfair. The provision plainly envisages cases where evidence should be excluded for broad public policy reasons beyond fairness to the individual accused.
A FAIR TRIAL IN THE MIDIST OF NEW EVIDENCE.
It was the courts finding that in determining whether the trial is rendered unfair, courts must take into account competing social interests. The court’s discretion must be exercised
“by weighing the competing concerns of society on the one hand to ensure that the guilty are brought to book against the protection of entrenched human rights accorded to accused persons”.
Relevant factors include the severity of the rights violation and the degree of prejudice, weighted against the public policy interest in bringing criminals to book.
The court held that, rights violations are severe when they stem from the deliberate conduct of the police or are flagrant in nature. There is a high degree of prejudice when there is a close causal connection between the rights violation and the subsequent self-incriminating acts of the accused. Rights violations are not severe, and the resulting trial not unfair, if the police conduct was objectively reasonable and neither deliberate nor flagrant. Philomena Mbete Mwilu vs. Director of Public Prosecutions & 3 Others case (supra) also referred to S v Magwaza 2016 (1) SACR 53
The learned justice further held that
In Kenya the reigning constitutional position in respect to the applicability of Article 50(4) of the Constitution is that the determination of the question whether to exclude illegally obtained evidence is a matter within the jurisdiction of the trial Court. However, in instances where a determination is to be made on whether the illegally obtained evidence will render the trial unfair or is otherwise detrimental to the administration of justice, then a Constitutional Court has the mandate to deal with the matter.
The question which now begs an answer is whether in public policy considerations the evidence is otherwise detrimental to the administration of justice.
The High Court dealt with the public policy consideration in Philomena Mbete Mwilu vs. Director of Public Prosecutions & 3 Others
LESSONS FOR UGANDA
With respect to the Computer Misuse Act of Uganda as amended and the Data Protection Act;
1. Section 12 as amended by section 1 of the Computer Misuse (Amendment) Act of 2022 is to the effect that accessing or intercepting any program or another person’s data or information, voice or video recording another person, sharing any information about another person without authorisation is an offence.
2. The case demonstrates the importance of protecting the right to privacy of communication and the right to a fair trial, as guaranteed by the Constitution of Kenya. The court recognized that spousal surveillance infringes on these rights, and that evidence obtained in such a manner should be excluded, unless there are exceptional circumstances that justify its admission, The similarity of this provision is envisaged under Article 27 of the Constitution of Uganda 1995 on the right to privacy and a speedy trial under Art 28.
3. The case also highlights the need for enhancing data privacy and security for individuals and couples, especially in the digital age, where personal information and communication can be easily accessed, hacked, or manipulated by third parties.
4. The case urges the parties to seek counseling and mediation, and to respect each other’s privacy and dignity.
5. The case also suggests some measures to prevent or reduce the occurrence of spousal surveillance, such as using strong passwords, encryption, and antivirus software, and avoiding sharing or storing sensitive data on electronic devices or platforms. Uganda can adopt and promote these measures, as well as raise awareness and educate the public on the importance and benefits of data privacy and security.
6. The case also demonstrates the challenges and complexities of applying the constitutional provision on the admissibility of evidence, Article 50(4) of the Kenyan Constitution, in civil disputes. Uganda has a similar provision in Article 28(3) of its Constitution, which states that “a person charged with a criminal offence shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law; except with his or her consent, the hearing shall not take place in his or her absence unless he or she so conducts himself or herself as to render the continuance of the proceedings in his or her presence impracticable and the court or tribunal has made all reasonable efforts to have him or her brought before it”.
However, there is no clear guidance or criteria on how to determine when evidence obtained illegally may be admitted in court, and what factors to consider in balancing the interests of justice, the rights of the parties, and the public policy considerations.
What Are Some Measures To Enhance Data Privacy And Security For Individuals and Couples?
1. Use strong passwords, encryption, and antivirus software to protect your electronic devices and platforms from unauthorized access, hacking, or malware. You can also use a password manager to generate and store your passwords securely. For example, you can use [Microsoft Edge Password Manager] to create and manage your passwords across different devices and websites.
2. Avoid sharing or storing sensitive data, such as personal information, financial records, or intimate communication, on electronic devices or platforms that are not secure, reliable, or trustworthy. You can also use a cloud service, such as [OneDrive], to backup your data and access it from anywhere.
3. Respect your partner’s privacy and dignity, and do not spy on their electronic communications and devices, unless you have their consent or a valid reason. You can also communicate with your partner openly and honestly, and seek counseling or mediation if you have any issues or conflicts in your relationship.
4. Educate yourself and your partner on the importance and benefits of data privacy and security, and the risks and consequences of spousal surveillance. You can also learn more about the laws and regulations on data privacy and the admissibility of evidence in your country, and how to protect your rights and interests in case of a legal dispute. For example, you can read this article on [Data Privacy, Spousal Surveillance, and the Admissibility of Illegally Obtained Evidence in Court, A Comparative Analysis of Uganda and Kenya].
By Kongai Lydia (PGDLP Candidate)
You can access this paper using this link
Disclaimer!!! The article is based on the author’s research and analysis of the legal issue of the admissibility of illegally obtained evidence in civil disputes in Uganda and Kenya, with a focus on the case of RC v KKR [2021] eKLR. The article is not intended to provide legal advice or guidance, and the author is not liable for any errors or omissions in the information or the results obtained from the use of the information. The reader is advised to consult a qualified legal professional before taking any action based on the information in the article.
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