Article 31 of the Constitution falls squarely within the ambit of the mandate of the Data Commissioner in as far as the protection of the right to privacy is concerned. The Application and/or enforcement of this Constitutional right will appear to fall squarely at the door of the Office of the Data Protection Commissioner. But would a determination whether this right has been infringed amount to an interpretation of the Constitution? And does the ODPC have this right of constitutional interpretation, which the Constitution has solely vested in the High Court?
The High Court in Mwanzia v Rhodes  KEHC 2688 (KLR) (the “Mwanzia Case”) struck out a claim for the violation of the right to privacy and declined jurisdiction to entertain the claim because of the doctrine of exhaustion. Based on an analysis of the Mwanzia case, we examine the Court’s reasoning in finding that the Office of the Data Protection Commissioner is the first port of call on all matters touching on the violation of Article 31 of the Constitution and that a party ought to exhaust this avenue before moving to the High Court. We focus on the violation of the right to privacy. So, when do courts entertain a claim for the violation of the right to privacy?
Delegated and Constitutional Authority
In its day-to-day functions and especially in giving effect to Article 31 of the Constitution, on the right to privacy, parliament created the Office of the Data Protection Commissioner (the “Commissioner”) by passing the Data Protection Act, 2019 (the “Act”).
The Act provides for the protection of the right to privacy and remedies when the right has been denied, violated, infringed, or threatened. Sufficiently so, it establishes the office of the Data Protection Commissioner who, as a public officer, is charged with the duty of upholding and defending the Constitution vide Article 3 of the Constitution. To wit, the Commissioner can determine whether a given set of circumstances reveal the denial, violation, infringement, or threat to the right to privacy in the Bill of Right.
In the Mwanzia Case, the delegated authority of the Commissioner elaborated above is distinguished from that of interpretation of the Constitution that is an exclusive reserve of the High Court as provided by Article 165 (3) (d). The court went further to espouse that interpretation is a judicial function that calls for the application of legal minds to determine the applicability and extent thereafter of constitutional provisions to a set of facts.
Therefore, the Commissioner has jurisdiction to determine a claim on whether the right to privacy has been denied, violated, infringed, or threatened as well as remedy the violation if the dispute is successfully proven. On the other hand, the Commissioner cannot involve themselves with the interpretation of the Constitution. However, having original jurisdiction on both criminal and civil matters, the High Court can also entertain a claim for the violation of the right to privacy.
The Doctrine of Exhaustion
The Court in the Mwanzia Case stated that before a claim for the violation of the right to privacy is entertained, a petitioner must demonstrate that they have completely pursued available remedies in the available quasi-judicial bodies as established by statute. This is known as the exhaustion doctrine and “…serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts… encourages alternative dispute resolution mechanisms in line with Article 159…” To wit, where there is a clear procedure for redress of any grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
Thus, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures. The Court of Appeal in Speaker of National Assembly v Karume  KLR 21 while tackling the doctrine of exhaustion stated that: “…Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts…”
Exemptions to the doctrine of Exemption
Having original jurisdiction, the High Court has the leeway to entertain claims for the violation of rights without regard to the doctrine of exhaustion, however, a claimant must demonstrate the reasons why they deserve the exemption from statutory edicts that require them to adhere to the doctrine of exhaustion.
Courts may accord exemptions in the following circumstances:
- Where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake; and
- Where jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit.
In both instance, courts undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved, including level of public interest involved, and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. For the first instance of exemption, courts are guide by the fact that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. For the second instance, the rationale behind it is the precept that statutory provisions ousting Court’s jurisdiction must be construed restrictively.
Essentially, where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion.
Where there are alternative avenues legally provided for in dispute resolutions, there should be postponement of judicial consideration of such disputes until after the available avenues are fully adhered to or unless it is adequately demonstrated that the matter under consideration falls within the exception to the doctrine of exhaustion. If exemptions are needed, anyone claiming a violation must demonstrate it with certainty to get audience with the court and get reprieve.
Further, the protection of the right to privacy as enshrined in Article 31 of the Constitution and attendant remedies that may arise from the right being denied, violated, infringed, or threatened are squarely within the mandate the office of the Data Protection Commissioner. As a public officer appointed and drawing their mandate from the Act, the office is charged with the duty of upholding and defending the Constitution vide Article 3 of the Constitution. This is limited to the Commissioner not going as far as interpreting the constitution as this is a strict reserve of the High Court.