Court Ruling on Digital ID in Kenya Underscores the Importance of Public Participation and Safeguards

By Thea Anderson and Franklyn Odhiambo, Omidyar Network

On January 30, the Kenyan High Court issued a ruling on the validity of Kenya’s National Integrated Identity Management System (NIIMS, or more commonly Huduma Namba which means “service number”). Civil society groups, namely the Kenyan Human Rights Commission, Namati and Nubian Rights Forum, had challenged the digital identity program earlier in the year, citing the:

• Limited consultation with the public;
• Compulsory registration;
• Mass accumulation of all Kenyan’s identity data into a single, digital database;
• Potential for exclusion; and
• Requests for certain types of sensitive date like GPS coordinates would put residents at significant risk and violate the Kenyan constitution.

On the whole, the court upheld the ID program with some strong, encouraging signals on privacy and inclusion. It also recognized that legal safeguards must be in place prior to the launch of any new ID program.

Omidyar Network had closely followed the case given our aspiration that all ID become Good ID and provide for the privacy and safety of everyone involved. We also believe identification programs must be transparent and inclusive in their conception, rationalization, and management as well as designed to empower individuals. Therefore, we have supported many of the local civil society groups engage on these important issues, including:

• IDEO.org Nairobi guided the development of the Good Participation Toolkit. This suite of free and practical resources was co-created with government and 22 civil society organizations to include the public in the design, rollout, and governance of an identification program.
• Nairobi-based Lawyers Hub, a community of technology lawyers, openly shared analysis of the Huduma Bill and an alternative option to help inform the public debate. Their draft regulations removed the penalties for non-registration, integrated refugees and stateless people, added comprehensive data protection guidelines, and championed data minimization.

A win for privacy and inclusion, more work ahead

The court’s judgement last week affirmed Kenyan’s right to privacy with restrictions on the collection of DNA and location data, calling the practice intrusive and unnecessary. Privacy protections are a core tenet of Good ID, and we celebrate local advocacy groups working to ensure this right endures for Kenyans.

The challengers were also indispensable in highlighting the exclusion of specific ethnic and religious communities, including Somalis and Nubians, in the ID program. The court found NIIMS, in its current form, could exclude or discriminate, especially those lacking existing government-issued documents.

And the court found Kenya’s current legal framework as “inadequate” to guarantee data protection over sensitive personal data. It required a halt to new data collection until a comprehensive regulatory framework is in place. We are grateful for this ruling as we believe that all decisions about ID — and any personal data — should be transparent, made with prudence, and inside a legal framework that protects and amplifies people’s rights.

But these opinions only show much more work will need to be done in Kenya — and on the continent and globally — to make the case for sustained, public participation and data protections ahead of any identification program rollout.

The risks to individual rights and freedoms posed by hastily conceived ID programs are significant, and we will continue to engage with the individuals, formal institutions, and local organizations in Africa protecting those liberties. For example, with our support, Lawyers Hub will launch the Africa Law Tech Festival early next month with the goal to build peer networks of policymakers, regulators, lawyers, human rights activists, and tech startups in collaborate on policy issues. We are confident that wider, meaningful consultations like these will remain important in bringing together a diverse group of stakeholders that need to be involved early to ensure Good ID norms and practices emerge throughout the region.