Electronic Theses and Dissertations (PhDs)
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Browsing Electronic Theses and Dissertations (PhDs) by Type "Dissertation"
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Item Adequacy of Data Protection Regulation in Kenya(University of the Witwatersrand, Johannesburg, 2023-10) Laibuta, Antony Mugambi; Zitzke, EmileArticle 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.Item Gang violence or the continuation of an armed conflict by other means: the application of international humanitarian and criminal law to gangs as an organized non-state armed group(University of the Witwatersrand, Johannesburg, 2023-06) Pose, Jorge Claudio Lema; Swart, MiaThe purpose of this thesis is to develop the applicability of International Humanitarian Law and International Criminal Law to a specific organized criminal group (the maras or gangs in Central America).4 This thesis considers that this criminal actor (the maras) within the gangs presents many similar aspects to traditional non-state organized armed groups. Furthermore, the thesis will explain how the maras have instrumented a level of violence that, in practical terms, has reached the threshold of an armed conflict: in summary, International Humanitarian Law and International Criminal Law can be applied to the marasItem Legal challenges of establishing jurisdiction over cloud data: addressing the gaps in South Africa’s cybercrime legislative framework(University of the Witwatersrand, Johannesburg, 2023) Musoni, Melody; Klaaren, JonathanThis thesis discusses the problems presented by the emerging technology of cloud computing during cybercrime investigations. One of the main challenges with cloud computing technologies is the lack of clarity on jurisdiction and whether law enforcement agents can exercise unilateral enforcement jurisdiction over remote cloud data. The thesis signifies the challenge by demonstrating how remote access to cloud data can potentially infringe on the sovereignty of foreign states, violate international law, and infringe on people’s privacy rights. The underlying concern with cybercrime investigations in the cloud context is that the current laws are not only territorial, but they are also outdated and lacking the ability to complement and address technological advancements. The central question discussed is whether the jurisdictional principles need to be revised to address innovative technological advancements or if the traditional principles suffice and can continue to be of application. At present, there are diverging views and approaches to dealing with cloud data jurisdiction for criminal investigation purposes. Some scholars, judges and law officers still rely on traditional jurisdictional principles and apply them to cyberspace and cloud environments. They do not see the justification to have separate laws to address activities in cyberspace. However, others advocate for the acclimatisation of new laws to meet the technological changes. Compounding this difference in opinion is the uncertainty in legal frameworks on cybercrime. Such uncertainty has left the topic vacillating between the views of territorialists and those of data exceptionalists. Similarly, South Africa’s position on this issue is unequivocal as various pieces of legislation address the issue of cloud jurisdiction differently. This makes this study of utmost importance. This thesis argues that law should be developed to address the technological changes presented by cloud computing technologies. Traditional jurisdictional principles which emphasise on geographical territory are not sufficient to address the unique features of cloud data. Pre-internet based jurisdictional principles should not be directly applied in cyberspace or cyber-environments. It is important for law to be developed in a manner which allows it to adequately address technological developments. One way of achieving this is by reformulating jurisdictional principles to conform with the emerging technologies. Apart from law, lawyers and law makers should leverage the use of other regulatory modalities such as code to regulate online conduct. Code can play the role of law which can effectively regulate cyberspaces as well as solve the data jurisdictional problem. This thesis supports the notion of reformulation of jurisdictional principles to address these challenges. In addition, it also points out the importance of reinforcing the current measures in place to address jurisdictional challenges