On the 22nd of March 2022, the office of the Kenyan Data Commissioner issued the Draft Alternative Dispute Resolution (“ADR”) Framework which was subjected to public participation before its adoption.
Section 9(1)(c) of the Data Protection Act, 2019 allows for settlement of disputes arising from the Act by way of facilitation, conciliation, mediation and negotiation. The framework seeks to elaborate the relevant procedures to be followed and the timelines to be adhered to where parties opt for the use of ADR mechanisms in resolving disputes under the Data Protection Act.
TripleOKLaw Advocates, through our TMT department, submitted thoughts and comments on the Draft ADR Framework highlighting areas of concern and recommendations to the Office of the Data Protection Commissioner. The aim is to ensure not only a legally sound ADR framework but also one that would practically enable amicable settlement of disputes.
| Area of Concern | Recommendation by TripleOKLaw, Advocates LLP | |
| Definitions, Clause 1 and Clause 2 | The clauses are not very clear on what forms of Alternative Dispute Resolution (ADR) are applicable, the definition section and Clause 1.3 acknowledge arbitration as a form of ADR, however, clause 2.1 does not contemplate arbitration. We would recommend that the modes of ADR to be used should be limited to mediation, conciliation, facilitation, expert assessment and arbitration which should be reflected uniformly in the framework. Where parties opt for arbitration, this should be carried out pursuant to the provisions of the Arbitration Act No. 4 of 1995. | |
| Clause 3 on Legal Basis of facilitated ADR | Based on the above comment, Clause 3 should be amended to include the Arbitration Act No. 4 of 1995 as a legal basis for the Data Protection ADR Framework. | |
| Clause 4, 5 and 6 on commencement of ADR | The clause should be amended to allow for commencement of ADR in two ways:Facilitated alternative dispute resolution by the Data Commissioner or upon written request by a party to the Data Commissioner. It should also further stipulate the nature of complaints the Data Commissioner may allow determination by way of ADR upon admission of a complaint. Some of which should include but not limited to complaints relating to:Mode of collection of personal data.Objection to processing of personal dataData access requests by data subjectsRectification of personal data.Data portability requestsData subjects right of erasureAny other complaints the Data Commissioner may deem fit. The Commissioner could also consider introducing binding ADR mechanisms on certain claims by data subjects. We have seen growing appreciation in other jurisdictions on compulsory use of ADR in certain disputes. For instance in the United Kingdom, the Commercial Rent (Coronavirus) Bill 2021-22 seeks to introduce a new binding arbitration process for resolving disputes related to ringfenced rent debts resulting from mandated business closures during the pandemic. Additionally, the Data Commissioner should be mandated to call a conference between the parties upon admission of a complaint and determination that the complaint should be delt with using ADR mechanisms. We propose the introduction of a clause that would provide as follows: The Data Commissioner may call a conference of the parties to a complaint by – (a) posting to each of them a notice requesting their attendance at a time and place specified; or (b) such other means as is agreed to by the parties concerned. The objectives of the conference shall be – (a) to identify the matters in issue between the parties; and (b) to try and obtain agreement between the parties on the resolution of those matters. (c) Where a person fails to comply with a request to attend a conference, the Data Commissioner may issue a summons requiring the person to attend another conference at a time and place to be specified. The aim here is to help the parties come to a speedy resolution of the dispute/complaint considering that they often will have a contractual relationship. Where the Data Commissioner in their own right determines that the complaint should be determined by use of ADR, they may facilitate the process or appoint someone to act in their stead. However, where the parties apply to have the complaint determined by way of ADR, the facilitator/ADR practitioner should be selected by the parties to the dispute subject to meeting the criteria stipulated in the framework and upon satisfaction of the same to the Data Commissioner. This is because ADR is a party driven process. Selection of the facilitator by the Data Commissioner may bring into question the impartiality of the process. The Data Commissioner should only appoint the ADR practitioner in instances where the parties are unable to reach an agreement within 30 days. To mitigate against parties selecting an ADR practitioner that is not qualified, the framework can set out the minimum qualifications of an ADR practitioner, for instance their minimum work experience in data protection related field and the certifications that they should have from their governing body. The parties should then be required to satisfy the Commissioner that the appointed ADR practitioner has met the minimum qualifications under the framework. The period for resolution of the complaint through ADR should be strictly limited to 90 days without an option of extension of the same. Where the dispute has not been resolved within 90 days, it should be referred back to the Data Commissioner. This is to ensure that disputes are concluded as soon as is reasonably practicable. Therefore, where parties opt to resolve their disputes through ADR, the Data Commissioner should suspend any administrative steps for a maximum period of 90 days. | |
| Clause 7 on the Suitability of disputes to ADR | We foresee a potential challenge in this clause as one of the instances where a dispute would not be considered eligible for determination using ADR is where settlement is contrary to the Constitution of Kenya or where it is in the public interest to have judicial clarification of the dispute. These grounds are very broad, and parties may easily rely on this to avoid using the ADR processes in the framework. We would advise the ODPC to consider narrowing these grounds. | |
| Clause 10 on the ADR Facilitators | Clause 10.4 stipulates that where the facilitator finds that the complaint cannot be resolved through facilitation, the facilitator should refer the matter to mediation. It is our recommendation however that upon determination by a facilitator that a complaint cannot be sufficiently handled by way of facilitation, the facilitator should table a report to the Data Commissioner with recommendations stipulating what form of ADR mechanism the complaint should be resolved through. The Data Commissioner should then, with the consent of the parties, refer the dispute to either mediation or arbitration. Further, under Clause 10.1, where the Data Commissioner appoints the facilitator, the parties are deprived of their freedom to choose which is a key reason for settling on ADR. The facilitator should be appointed by the parties upon satisfying the Commissioner that they have met the requisite qualifications under the Framework. The ODPC could consider having a list of certified facilitators that the parties can choose from. The Data Commissioner should only appoint the Facilitator where the parties fail to agree on one. | |
| Clause 14 on Management and procedures in ADR sittings | This clause only envisions procedures in facilitation; however, it does not stipulate the procedures that would apply where the complaint is subject to the other ADR instances. The clause should be amended to include all forms of ADR to the exclusion of arbitration, which should be governed by the procedures set out under the Arbitration Act No. 4 of 1995 | |
| Clause 15 on adjournments | We propose amendment of this clause for purposes of clarity to read as follows: (1)Where on the date of the meeting neither party attends, if the ADR practitioner is satisfied that the notice of the meeting was duly served to the parties, they may close the ADR proceedings and refer the matter back to the Data Commissioner (2) Where only the party that made the application to have the dispute determined by way of ADR attends and if the ADR practitioner is satisfied that the notice of meeting was a)duly served, it may proceed without the Respondent; b)not duly served, it shall direct a second notice to be served; or c)not served in sufficient time or for other reasonable cause, the respondent was unable to attend, it shall postpone the meeting. (3) Where only the respondent attends and if the ADR practitioner is satisfied that notice of the meeting was: (a) duly served, it may refer the dispute back to the Data Commissioner; (b) not duly served, it shall direct a second notice to be served ;or (c) not served in sufficient time or for other reasonable cause, the applicant was unable to attend, it shall postpone the meeting. | |
| Clause 18 and 19 on withdrawal and termination of the ADR process | Clause 18 should be qualified to allow for withdrawal from ADR proceedings at any time prior to issuance of a final decision from an ADR practitioner Termination of the ADR process should include a situation where the ADR practitioner finds that the continuation of the proceedings has for any other reason become unnecessary or impossible. Clause 19.3 may pose a potential challenge where parties withdraw from the ADR proceedings or terminate them without reasonable cause then seek to have them re-admitted. This could potentially frustrate the process. We recommend that the re-admission to the ADR process may only be allowed where the 90-day period allowed for the ADR process has not lapsed. Additionally, prior to re-admission, the Data Commissioner should satisfy themselves that the parties are acting in good faith. Further, the party that sought withdrawal or termination should not be allowed to apply for re-admission unless the Data Commissioner finds a justifiable cause for re-admission. | |
| Clause 20, 21,22 and 23 | These provisions as well as the Form DPC 5 (Alternative Dispute Resolution Settlement Agreement) do not contemplate a situation where there is part settlement of the dispute by the parties. The framework should stipulate that where the parties have only settled on some issues, the outstanding issues should be remitted to the Data Commissioner for determination and the same should be reflected the Form DPC 5. |