Kristophina Shilongo is a Senior Mozilla Fellow in Tech Policy, focused on national data policies and regulation on the African continent.
Africans have a huge responsibility to institute a healthy data economy. They have to ensure data privacy, fend off data colonialism from richer countries, and among other things encourage local innovations that improve the lives of African people rather than make it worse. It is a somewhat complex situation and there is no single answer but it is critical. In fact, many countries e.g. the UK or India, suffer from regulatory complexities around the processing of data in the public and private sectors, making it difficult to govern it for the benefit of people. For countries like Namibia, a smaller population (estimated at 2.5 million) and a growing economy could ameliorate some of these complexities. These two characteristics are useful for setting up accountability mechanisms with adequate oversight. First by supporting a community-based approach to data governance and secondly, the protection of human agency in a datafied society may also be easier to promote if supported by clear legal frameworks.
The country is currently in the process of drafting and passing foundational laws relevant to the safe governance of data and digital technologies. In 2022, the Namibian National Assembly passed an Access to Information Bill into an Act of Parliament which operationalizes a law compelling both public and private institutions to avail information in the interest of the public or which protects the rights of individuals or communities. Parallel to this the Ministry of Information Communications and Technology has been consulting on the Draft Data Protection Bill, 2021. The draft bill focuses strongly on safeguarding the privacy of data subjects and the protection of personal data by outlining the foundational obligations of controllers and processors. Crucially it also makes provisions for the establishment of a Regulatory Authority.
The bill, however, misses the opportunity to explicitly include and highlight data protection tenets for the benefit of data subjects, and essentially society at large. The unlawful processing of personal data or contravention of a to-be-proposed code of conduct by data controllers, processors or a third party is punishable by a fine to the Supervisory Authority. However, the draft bill does not make provisions for accountability mechanisms that enable legal recourse for harm caused to data subjects or communities.
However, the draft bill does not make provisions for accountability mechanisms that enable legal recourse for harm caused to data subjects or communities.
Kristophina Shilongo Senior Fellow in Tech Policy at Mozilla
What happens when individuals or communities experience hardship or injustices at the hands of the data controllers, processors, or a third party? Similarly, given that data or more broadly Artificial Intelligence (AI) permeates our daily lives, how will the Authority ensure that data subjects are aware that the harm or injustice caused to them is not inevitable (especially when it may economically benefit companies).
Building on other forms of collective governance such as data trusts and the special circumstances Namibia finds itself in, I am of the opinion that the bill should and can go a step further by establishing what J. Nathan Matias terms ‘community technology workers’ or more relevant a Community Data Worker. This is not a new governance approach for Namibia, as Matias points out it is an approach adopted globally in the health sector. A similar governance approach is also adopted in the conservation sector in Namibia, under the Nature Conservation Amendment Act, 1996. The Act makes provisions for community conservation governance via the establishment of a Conservancy Committee which not only oversees that members of a community derive benefits from the use and sustainable management of conservancies and its resources but also ensures community members within a specific conservation constituency know their rights. Conservancy Committees strive to make community members aware of recourse mechanisms available to them and advocate for their human rights within the conservation ecosystem. Essentially they work in the interest of the public by soliciting community trust. This is a governance structure that recognizes how historical and structural injustices affect the way communities interact with the systems in question and sets up the necessary accountability mechanisms to counter them. For data governance, the Community Data Worker would be positioned to represent the interests of the community which includes seeking justice or recourse for damages caused by data controllers, processors, or third parties including developers of AI. The Workers would be able to support monitoring and evaluation efforts by the Supervisory Authority from the data subject’s perspective.
Linked to accountability is the issue of protecting human agency. It is unrealistic to expect every community member to be educated on the protocols of data use and to have the capacity to recognize when their agency is being infringed on. However, through a trusted committee or Community Data Worker as mentioned above, they can liaise with the relevant authorities to represent the interests of the community and the Worker should be able to report back to the community with information they may require about their data or its governance. Provision can be made for this within the Draft Data Protection Bill by connecting the mandates of the to-be-established Information Commissioner under the Access to Information Act with those of the Supervisory Authority. This connection does not currently exist within the Draft Data Protection Bill. In this small way, the agency of the community member or the public is protected without burdening the individuals or community with the technical details they may not understand or have the skills to take an interest in.
Of course, the small population and growing economy do not eliminate the challenges countries like India face in trying to develop frameworks to govern non-personal data. Questions of how to define data communities and how they would be formed to assign a community worker are not clear-cut. The Namibian government through its own precedence in other sectors, the Draft Data Protection Bill, and other technology legislation and policy tools has an opportunity and a responsibility to ensure that data and advanced technologies work for the people of Namibia. It excitingly also has a unique opportunity to apply new ways of governance to data by taking lessons from other sectors.