School of Law (ETDs)

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Adequacy of Data Protection Regulation in Kenya
(University of the Witwatersrand, Johannesburg, 2023-10) Laibuta, Antony Mugambi; Zitzke, Emile
Article 31 of the Kenyan Constitution provides for the right to privacy. The Kenyan Data Protection Act, 2019 gives effect to Article 31(c) and (d) of the Constitution. This study is about whether data protection regulation in Kenya would inspire any confidence in data subjects who enjoy protection of their right to privacy under Article 31 of the Constitution. Kenya, going with the global trend, in November 2019 enacted the Data Protection Act. Before the enactment, Kenya had debated data protection Bills for over a decade. But even with the enactment of the Data Protection Act, the question remains whether this was sufficient to guarantee the right to privacy and specifically data subject rights. The main aim of this study is to determine the adequacy of data protection regulation in Kenya by responding to five questions: How has data protection evolved in Kenya? What framework should be used to determine the adequacy of data protection regulations? To what extent is the legal framework on state surveillance adequate? To what extent is the legal framework on commercial use of personal data adequate? How adequate are the available remedies in relation to data protection in Kenya? To wit, no comprehensive academic discussion has explored the history of privacy and data protection in Kenya. This study fills this gap in the academic literature. It has established, through highlighting constitutional and statutory provisions, that the right to privacy in Kenya has been in existence since Kenya gained independence from colonial rule. Conversations during the clamour for constitutional reforms shaped the current text that provides for an individual right to privacy which has been the springboard for data protection rights to be introduced. There is no immediately obvious framework that would be ideal to determine the adequacy of data protection regulation in Kenya. In light of this gap, this study has presented a simple set of questions used in day-to-day legal practice to be used as the determination-of-adequacy framework. The questions, “who?”, “why?”, “what?”, “when?”, “where?”, and “how?” are iv posed on State surveillance, surveillance capitalism, and access to effective remedies. Responses to these questions are juxtaposed with provisions of the European Union’s General Data Protection Regulation and South Africa’s Protection of Personal Information Act. The responses reveal the level of adequacy of data protection regulation in Kenya. On adequacy in State surveillance, surveillance capitalism, and availability of effective remedies, the study has revealed that while there are provisions of the law that adequately regulate the three issues, there are gaps and ambiguities that must be addressed to raise the level of adequacy and inspire confidence in data subjects. For the gaps and ambiguities, this study recommends law reforms in the form of amendments to provisions of the Kenyan Data Protection Act, Data Protection (General) Regulations, Competition Act, National Intelligence Service Act, and the Data Protection ADR Framework. This study also recommends enactment of new law including an Artificial Intelligence Act, Data Protection (Statutory Database) Regulations, and Regulations on interception of communications under the Prevention of Terrorism Act and other enabling statutes.
Balancing the Necessity of Mining Activities and Community Participation in the Pursuit of Environmental Protection
(University of the Witwatersrand, Johannesburg, 2021-01-31) Laka, Tshepiso Josephina
Mining activities result in a myriad of e nvironmental and health impacts. These issues remain to be primarily ignored by mining companies and government departments. The need for public participation in relation to environmental awareness and protection must be taken into account within mining affected communities, u nfortunately, most mining communities are often not aware that they are entitled to an environmental right under the Constitution of the Republic of South Africa, 1996 (the Constitution). Communities suffer from environmental degradation that is inextricably linked to their quality of life and their well- being. Most mining companies fail to protect mining communities from harmful environmental impacts resulting from mining activities. South Africa depends heavily on mining sectors for its socio-economic advancement to such an extent that many millions of people rely on the revenue generated from mine. It is crucial that while mining sectors are pursuing economic developments, the environment, human health and social issues must be afforded the required protection. As such, this thesis explores the environmental harms associated with mining and the importance of meaningful participation. Notably, these environmental injustices can be mitigated by implementing the already established environmental legal framework. This thesis will further critically discuss how mining companies fail to encourage and promote environmental health and wellbeing by not only enhancing public participation within mining affected communities but to also provide communities with concrete measures to promote the ecologically-centred sustainable development
Data protection and borderless borders: the effect of the namibian data protection bill on transborder data flows
(University of the Witwatersrand, Johannesburg, 2022) Negonga, Paulina Nangula; Klaaren, Jonathan
Data is the sine qua non of the modern economy. The proliferation of digital industries has led to concerns about the misuse of personal data. The resultant risks have sparked ethical and legal concerns across the globe, prompting the adoption of data protection laws. The Namibian constitution guarantees the right to privacy in Article 13, but the country lacks a comprehensive data protection legal framework. The Namibian government issued a Data Protection Bill in 2013.This dissertation critically analyses sections 2 and 48 of the Data Protection Bill dealing with transborder data flows, by employing a two-part theme. In the first instance, the dissertation advocates for a holistic approach that strikes a balance between the individual’s right to privacy and the economic imperatives of transborder data flow. In the second instance, the dissertation investigates how to effectively govern transborder data flow with the continuous blurring of lines between physical and virtual worlds, where data transcends territorial borders with a simple click. The mainstream argument for regulating transborder data flow is that if there are no restrictions on the transfer of data to third-party countries, personal data may end up in jurisdictions with the laxest, or more likely, no data protection standards, just as money ends up in tax havens. To put the oft-quoted tax analogy into context, there may be nothing preventing international data processors from circumventing domestic data protection requirements by gravitating personal data to data havens. Through an elaborate comparative analysis, primarily referencing three instruments: the oecd Guidelines, the GDPR, and the POPI Act; the dissertation looked at how these issues are considered and whether the Namibian Data Protection Bill matches up to these standards. The analysed regulatory regimes varied; nonetheless, a corollary was drawn to adopt a broader EU-style territorial scope. This dissertation recommends that section 2 of the Bill should be amended to conform with Article 3(2) of the GDPR (targeting test/market principle). The chosen approach actively embraces the fourth industrial revolution by allowing data protection to ‘travel’ with personal data wherever it goes in a globalised world.
Evaluation of the public participation process in promoting better environmental decision-making
(University of the Witwatersrand, Johannesburg, 2023) Ethel, Shumani
Public participation gives interested and affected parties a chance to engage in environmental governance issues. The NEMA principles state that: ‘The participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the knowledge, skills, and capacities necessary to achieve equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured’. This study assesses the effectiveness of the public participation process in promoting better environmental decision making and analyses South Africa’s environmental legislative framework to determine whether the country has good law or if existing law needs to be revised to promote effective public participation. Environmental decisions made by administrators have recently been challenged in court, raising the possibility that these decisions are not always consistent with good environmental governance. Good environmental governance would entail considering the role of each participant who has an impact on the environment, from the state to NGOs, civil society, and the private sector. Achieving good governance will necessitate a collaborative effort, paving the way for long-term development. The case of Sustaining the Wild Coast was selected for analysis to demonstrate that the environmental legislative framework appears sufficient to promote effective public participation; however, the challenge lies in the implementation, where the competent authorities and project proponents seems hesitant to genuinely engage with the affected and interested parties. The case also demonstrates that for interested and affected parties to be successful in advancing sustainable projects, they need substantial funding because they will need to gather scientific evidence; without such evidence, their chances of failure are increased. This was demonstrated in the Border Deep Sea Angling Association case, which the applicants lost due to a lack of exhaustive scientific evidence. The case of South Durban Community Environmental Alliance highlighted the issue of access to administrative and judicial proceedings. If NGOs are penalised with cost orders despite the sincerity of their litigation, the proceedings may prove costly. Poverty-stricken communities will not be able to afford access to legal instruments and this renders public participation ineffective. As a result, sustainable development will not be realised. The study concludes by proposing techniques for improving the effectiveness of the public participation process
Is there tension between the enforcement of patent rights and promotion of competition policy in South Africa?
(University of the Witwatersrand, Johannesburg, 2023) Sham-Guild, Julia; Marumoagae, Clement
This research report examines the intersection between competition law and patent law. In particular, it examines the abuse of patent rights by dominant players that hinder access to life- changing products. It evaluates the potential tension between protecting patent rights and promoting competition, which raises concerns about equitable access to lifesaving products. Vertical and horizontal prohibited practices, including patent pools, cross-licensing agreements, and pay-for-delay settlements are also discussed, in terms of both encouraging co- operative opportunities benefitting society while also posing the risk of creating platforms for collusion that could lead to price fixing and market allocation for competing patented products. The focus for the South African competition authorities has been on addressing abuse of dominance by patent holders, particularly regarding excessive pricing and equitable access to patented life-saving medicines and vaccines. This research report examines the case law onexcessive pricing and dominant firms' refusal to license patents patented medications, resulting in Competition Commission investigations. This report also addresses equitable access to life- saving medicine, particularly during the COVID-19 pandemic, including South Africa's request to the World Trade Organisation for a TRIPS waiver for patented COVID-19 vaccines. The research report concludes that while there is tension between these areas of law, competition plays a vital role in promoting fair pricing of, and equitable access to, life-saving patents
The adoption of competition law remedies in the resolution of unlawful administrative decisions in public procurement
(University of the Witwatersrand, Johannesburg, 2023-11-01) Sanickson, Melissa Levia; Adeleke, Fola
This research report analyses the highly regulated area of public procurement, the available remedies and the role of competition law remedies as a potential form of redress for unlawful administrative decisions in public procurement. The decision to award a tender qualifies as administrative action and is reviewable in terms of the Promotion of Administrative Justice Act, Act 3 of 2000 (PAJA). Setting aside an unlawful tender is a primary remedy, however, a court has the discretion to grant this order. The court’s discretion is founded on an analysis of various interests and the conclusion is based on the most practicable outcome. Where a court withholds its discretion to set aside the tender, the successful tenderer benefits from an unlawful process. In unlawful procurement processes, competition is almost always distorted and the successful bidder has a competitive advantage due to unlawful conduct. It is a constitutional requirement and necessary that public institutions apply a competitive procurement process. Remedies found in the Competition Act, Act 89 of 1998, are more favourable than allowing the successful bidder to continue to benefit from an unlawful process. This research report develops a case for the amendment of PAJA to include ‘anti-competitive conduct’ as a ground to review administrative decisions in public procurement. The amendment will permit the applicability of the Competition Act and the remedies found within this area of law
The elusive quest for consensus on the scope and regulation of indirect expropriation
(University of the Witwatersrand, Johannesburg, 2023-02) Mseteka, Penjani Joy
Over the years, jurists, scholars, and professionals in the international investment law field have grappled with the issue of a lack of unified definition, scope, and regulatory framework for indirect expropriation. This paper aims to show that the international community has reached consensus on the broad definition of indirect expropriation but lacks clarity on the minutiae, scope, and regulation of indirect expropriation. Through an exploration of tribunal awards, academic articles, customary international law, treaties and other international documents, this paper will highlight the various attempts at creating tests to identify indirect expropriation. This paper also considers how tribunals have treated the numerous approaches to indirect expropriation and examines attempts to codify indirect expropriation approaches through treaties, bilateral investment treaties and international documents. The paper further acknowledges the strengths and weaknesses of the sole effects, police powers and proportionality approaches to indirect expropriation. Ultimately, the paper proposes a modified substantive deprivation and legitimate expectation test to regulate the determination of indirect expropriation. The paper concludes that whilst there is no universal framework of indirect expropriation, there isconsensus on the broad definition of indirect expropriation and distinct schools of thought on approaches to determine indirect expropriation. Through an exploration of the academic articles, arbitration awards, BITs, conventions, and draft conventions, it will be shown that there are a multitude of materially similar theories on the classification of indirect expropriation. Whilst there are several tests to determine whether indirectexpropriation has occurred, there is no singular, universal test to assess or determine whether indirect expropriation has occurred, particularly in comparison to regulatory government actions.
The impact of international treaties on South African law post 1996
(University of the Witwatersrand, Johannesburg, 2023) Cameron, Kayla-Jayne; Moyo, Khulekani
This research report considers the position of international treaties—referred to as international agreements in the South African Constitution—in the South African legal system, following the enactment of the final Constitution. This research report investigates the Constitution’s legal framework regarding the incorporation of international agreements into South African municipal law. It also examines matters relating to withdrawal from international agreements, the effects of international agreements ratified by Parliament but not incorporated into national law, and the importance of international agreements when interpreting national legislation and human rights. This research is of particular interest as prior to the final Constitution, no South African constitution provided a framework for incorporating international agreements into national law. While a framework now exists for incorporation of international agreements in South African national law, several issues still surround the incorporation of international agreements into national law, as will become evident throughout this research report

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