Kenya’s Controversial Digital ID Scheme Faces Pushback
By Michele Eken
Kenya is home to a blossoming $1 billion technology scene, but a new government-run digital identification program is stirring up controversy with concerns about data privacy and discrimination. As a leader in the tech industry, what happens next in Kenyan courts could paint a picture of the future for their neighbors in Africa.
On the eve of 2019, President Kenyatta signed into law a sweeping new digital identification system, the National Integrated Identification Management Systems (NIIMS). The one-page amendment, buried in an end-of-year omnibus amendments law, effectively required all Kenyan citizens and residents above six years old to register for a personal identification number, known in Kenya as Huduma Namba, (service number). According to the government, NIIMS would centralize all existing records and establish a master database as “the single source of persons’ identity in Kenya.”
While the government has sold NIIMS as a program to increase access to services and guard against identity theft, it is troubling that the amendment lacks teeth on data protection. It allows the government to collect invasive personal information such as GPS, DNA, and a list of other biometrics (which includes fingerprints, retina and iris patterns) without properly explaining how the government will use this information, or how it will be stored and protected. Moreover, the introduction of digital ID systems brings the potential for discrimination against vulnerable groups, something that may go unaddressed until too late.
The process of developing NIIMS, including the selection of the implementing contractor, has been surrounded in secrecy. The government has already spent close to Sh7billion on NIIMS (approximately $69 million), and the National Treasury seeks another Sh1billion from parliament to finalize the project.
Even more troubling, the law lacked genuine public participation, and the National Assembly by-passed approval by the Senate. An alliance of advocates, including the Kenyan Nubian Rights Forum (NRF), a grassroots non-governmental organization, challenged the law in the Constitutional and Human Rights Division of the High Court of Kenya in Nairobi in February 2019, ahead of the official start of the registration process.
In April, the court issued interim orders allowing the state to continue with registration on several conditions: the government could not make NIIMS registration mandatory or impose deadlines, it could not share data between agencies or with third parties, and it could not deny services to people who do not register.
Despite the court’s timely intervention, government officials proceeded to send mixed messages, warning the public on multiple occasions that registration would be mandatory while backing away from this statement on other occasions. Public understanding of NIIMS and the enrollment process was limited, with many left confused about its utility. Kenyans launched the Twitter hashtags #resisthudumanamba and #Iamnotboarding to voice their concerns about the program.
As of 2014, only 67% of births in Kenya were registered. Yet, the government requires birth certificates for minors and national identity cards for adults in order to register for a huduma numba. As expected, there were several reports of individuals who were unable to register for a huduma namba for lack of documentation. Mr. Ahmed Khalil, a witness in the litigation challenging NIIMS, is a 72-year old former police officer and a member of the Nubian community, an ethnic minority in Kenya. He lost his national identity card, but his various efforts to renew it, including his most recent one in 2018, were fruitless.
Exclusion during the initial registration stage can happen for a number of reasons: it might be because an individual lives in a remote part of the country and cannot easily access registration centers during the registration process, or because an individual’s fingerprints are worn and cannot be easily captured, as it often happens with manual laborers.
A digital identification system could also exclude members of marginalized communities, such as the Nubians of Kenya, who have difficulties proving their nationality. If a government makes access to basic social services conditional on being part of a digital identification system like NIIMS, then this system will jeopardize enjoyment of a host of human rights, including rights to basic goods and services, such as education, health care and social benefits. In light of this, several national courts, including in Jamaica and India, limited the design and placed constraints on the use of digital identification.
The hearing in the litigation challenging NIIMS was held from September 23 to October 3, 2019. The Nubian community filled the courtroom every day, a testament to the importance of this case for their community. The Nubian witnesses, including Mr. Khalil, testified to the hardship of obtaining documentation, and their fear of being excluded further by NIIMS. The Nubian Rights Forum’s expert witness warned about the risks of “exclusion by design” of digital identification, and stressed the importance of establishing a legal framework before implementing new technology, stating “the law cannot fix what technology has broken.”
The petitioners in the case have asked the government to purge the personal data they have already collected and provide the proper inclusionary and privacy-respecting legal and regulatory framework before proceeding with a digital identification scheme.
Advocates can already see the positive ripple effects of the case beyond the influential interim order issued by the court. On November 8, President Kenyatta signed into law a Data Protection Act. In the northern city of Garissa, the vetting of Kenyans of Somali descent who were wrongly registered as Somali refugees started last month, the first step in eventually providing them with a national identity card. After Mr. Khalil provided a written witness statement for the case ahead of the hearing, the government issued him a waiting card, a promising sign that the government will provide him a national identity card.
While national security and the efficient delivery of public services are important, doing so at the expense of residents’ privacy and at the risk of further alienating a section of the population comes at too much of a cost. Kenya still has a chance to rethink its approach to a digital transition, and lead the way for the rest of Africa.
The judges are expected to make a decision on January 30th.