Reconfiguring Data Protection Impact Assessment in Kenya through a Data Justice Lens

Widespread adoption of digital technologies and the increasing reliance on data processing in Kenya have led to a range of social challenges for the marginalized, including inequality, exclusion, discrimination, rights denial, and unfairness. These data injustice challenges, which emerge with alarming ease, necessitate a normative framework for DPIA for their effective redress. Currently, a significant gap exists between DPIA law on paper and in practice, as Kenya’s legal framework and implementation fail to comprehensively and collaboratively address data injustices faced by marginalized populations. The insufficiency arises from normative deficits in DPIA law, DPIA implementation and enforcement failures, and systemic flaws. The shortcomings cumulatively reinforce power imbalances, lack of consensus-building, limited community agency, and exclusion of key stakeholders from decision-making in the DPIA process. By applying dimensions of abnormal justice theory, which confront both the legacy of exclusion and non-neutrality of the DPIA law, this study proposes possibilities for reconfiguring Kenya’s DPIA framework through finding its ideal convergence with data justice. Employing mixed research methods combining socio-legal approaches, this dissertation demonstrates how convergence between DPIA and data justice, which is an implementation framework for abnormal justice, could drive necessary reform of DPIA practice in Kenya, ultimately leading to an ideal framework termed a ‘comprehensive and collaborative DPIA,’ which represents a marginalized perspective to data governance. Ultimately, the study recommends contextualizing comprehensive and collaborative DPIA in Kenya through specific approaches. The proposed approaches cover specific pathways for community agency and empowerment, resistance, legitimacy checks, embedding contextual nuances, and Constitutional grounding for DPIAs. The analysis has shown how these components contribute to creating an enhanced understanding of the Kenyan DPIA procedure as a living instrument whose legitimacy of scope, processes, and outcome derives from the community consensus of the marginalized populations. The study also offers detailed recommendations to various stakeholders to facilitate the framework’s implementation.