OPINION: Huduma Namba to exclude millions of Kenyans, violates court orders

Millions of Kenyans will be excluded from Huduma Namba if the new (National Integrated Identity Management System) NIIMS rules under the Registration of Persons Act and new Data Protection (Civil Registration) Regulations are implemented.

In January 2020, the High Court stopped the implementation of NIIMS and any processing or use of the data until a comprehensive regulatory framework is put in place to address concerns of data privacy and exclusion – including how people without identity documents and with poor biometrics can enroll in NIIMS.

Despite these orders, the government of Kenya proceeded to process data collected under NIIMS – with the Ministry of Interior stating over 90 percent of the data collected has been cleaned and matched.

These actions were taken without the required regulations in place, in blatant violation of the court’s orders, and without a completed Data Protection Impact Analysis, violating the Data Protection Act.

The government, through a Special Issue of the Kenya Gazette dated October 13, 2020, has released new rules and regulations. Yet nothing in these regulations addresses or mitigates risks of exclusion in NIIMS nor do these regulations satisfy the court’s conditions for the government to move forward with Huduma Namba.

These regulations threaten to exclude millions of Kenyans and residents in our country:

1. Kenyans without access to identity documents in the existing system, due to barriers such as distance, cost, and discrimination, remain without an option for enrollment into NIIMS. Minority communities who have struggled with identification for decades will be disproportionately affected.

2. Kenyans facing challenges with biometrics – such as unreadable fingerprints due to manual labour or medical conditions – will find no mitigating measures or defined alternatives in these regulations.

3. Children, who for the first time in the history of Kenya, will be required to get a card in order to access services such as education. Globally, technologies for taking children’s biometrics such as fingerprints are still at infancy and there is a high likelihood of technology failure with children’s biometrics.

4. Stateless persons, over 20,000 of whom reside in Kenya, are also left unmentioned in these regulations – and therefore not even recognized as a group that may require enrollment.

All those excluded from NIIMS will be unable to access basic services, to seize opportunities such as employment, to move freely in their own country, to protect their land and natural resources, to participate in democratic elections, and enjoy many other basic human rights. Ultimately, millions of Kenyans are being left at risk of further marginalization and lives defined by poverty.

Beyond exclusion in enrollment, the regulations and rules as gazetted seek to redefine some constitutionally recognised livelihoods and ways of life of minorities and marginalised communities.

For instance, the Huduma Namba form continues to list only fish farming, tree farming, crops, and livestock as agricultural activities, leading to a very high possibility of further marginalisation of pastoralists, hunter-gatherers and fisher communities, among others.

Fundamental changes to Kenya’s registration system that affect all areas of life cannot be subjected to tokenistic public participation for purposes of just ticking boxes.

The government needs to mount an extensive and detailed mass sensitization and civic education across the country, as through our own community-level work it is evident that many Kenyans are not completely informed about NIIMS.

In addition, public offices are yet to be sensitized on technology and access to services – risking that when the technology fails, officers will be unequipped to respond without denying citizens constitutionally protected rights and services.

We, therefore, call on the government to adhere to the court ruling and to respect the fundamental rights of all Kenyans as set out in our Constitution.

The government should, therefore, withdraw the regulations, until they fully address exclusion – including the enrollment of people without identity documents and those with biometric challenges, as directed by the High Court in its January 2020 orders on NIIMS.

The government should stop the rush, and instead develop the framework that is required through proper and effective involvement of all Kenyans

Statement issued by Nubian Rights Forum; Centre for Minority Rights Development (CEMIRIDE); Haki Centre; Haki na Sheria Initiative; Kenya Human Rights Commission and Defenders Kenya – Coalition

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