Reflections on the NIIMS Judgement

By Magdi Amin, Investment Partner, Omidyar Network

This week, the High Court of Kenya suspended core aspects of the National Integrated Identity Management System (NIIMS), popularly referred to as Huduma Namba, meaning “government service number,” pending hearings and the resolution of legal suits filed against the program.

The court’s decision gives the Kenyan government, civil society, digital rights advocates, citizens, and residents an opportunity to make changes that ensure NIIMS reflects Good ID in design and implementation going forward.

Good ID is our normative framing for digital identity systems that focus on individual empowerment while ensuring adequate safeguards.

At its core, Good ID is inclusive, offers significant personal value, and empowers individuals with privacy, security, and control.

Good ID issuers build trust with transparency and accountability.

And through thoughtful features, Good ID seeks to address exclusion, discrimination, surveillance, consent, and other key issues of our time.

The ruling was in response to a consolidated petition of three separate cases filed by the Kenya Human Rights Commission (KHRC), Nubian Rights Forum, and the Kenya National Commission on Human Rights (KNHCR). They expressed concern that the original design could potentially exclude segments of population. They noted the risks of collecting personally identifiable data at a national level scale without a data protection and privacy framework, safeguards, and recourse for harms. And they raised issues related to the lack of adequate public participation and inputs to the amendment of the Registration of Persons Act that they say infringes on basic constitutional rights, such as equality and non-discrimination.

While the full impact of the ruling has yet to unfold, we believe the ruling revises the design of NIIMS in key ways in the direction of Good ID. Specifically, the judgment reads:

• Registration in the digital identity program should not be mandatory;
• access to government services should not be tied to registration status;
• there should be no deadline to the registration;
• DNA and GPS information should not be collected; and
• the Kenyan government should not share the data collected with third parties until the legal cases are determined.

While digital IDs can help people unlock new opportunities like financial services and voting, they can also unlock new risks and challenges. We commend the court and others for recognizing these potential pitfalls and proposing changes that can build more trust, transparency, and accountability into the system.

As the country continues to design toward a permanent digital identity solution that empowers individuals, we encourage even more diligence on all aspects of Good ID. Most urgent are inclusion, privacy, and security given the registration process is expected to continue.

The court-mandated limits on compulsory registration and linking the delivery of services to Huduma Namba are a step in the right direction toward inclusion. Making ID systems voluntary incentivizes governments to design digital ID that people want: one that is privacy-enhancing, secure, user-controlled, and value creating. When people register, it is because they trust and find utility in the system.

With the shift toward voluntary registration, equitable access will be an important issue for the Kenyan government to address. The court’s order to implement a continuous registration process can help to reduce the structural barriers to registration, especially for marginalized groups. It will be important for the registrars to proactively reach out to all citizens and residents to explain the benefits and offer them the option of registration, on their terms.

Lastly, Good ID systems are backed by data protection legislation that guides the responsible collection, use, and management of identity data. Privacy is a fundamental human right, and we believe privacy is not possible without security. With a bill pending in Parliament and Kenya’s president calling for safeguards on data held by the government, the country can use this period to accelerate progress on this front and mitigate against risk to its citizens and residents.

The full hearing and court’s determination could begin in late April. This gives local stakeholders time for a national dialogue on the governance and features of the NIIMS system, advancing toward Good ID. An open conversation, especially including those with historical lessons on identity marginalization, can help ensure NIIMS is inclusive, enhances privacy, is useful and valuable, and gives individuals control and security. Proper reflection and public participation can help ensure the country creates an ID system that is consistent with its democratic traditions and leadership role in Africa’s digital transformation.