Government shouldn’t force flawed digital ID system on Kenya
Civil society organizations in Kenya have noted with concern the government’s policy to begin exclusively issuing new ID applicants and people seeking to replace lost IDs with the new digital ID, Maisha Card despite the project’s serious design irregularities and exclusion concerns.
On February 23, 2024, the Principal Secretary for the State Department for Immigration and Citizen Services, Ambassador Julius Bitok announced the government’s plans to accelerate the issuance of the new generation National Identity Cards, known as Maisha Cards.
PS Bitok’s announcement followed the lifting of a court order that had suspended the implementation of the digital identity project known as Maisha Namba. Katiba Institute had filed a case with the High Court challenging the legality of the Maisha Namba project, but the matter has now been transferred to the constitutional and human rights division of the High Court for hearing and determination. It is because of this transfer to another division of the court that the interim order halting the rollout of Maisha Namba was lifted.
Another civil society organization, Haki na Sheria Initiative has also filed a petition with the High Court challenging the constitutionality of Maisha Namba.
We, civil society organizations, acknowledge and commend the High Court’s swift decisions, first to issue interim orders suspending Maisha Namba and secondly to transfer the Judicial Review case on Maisha Namba to another division of the court. However, we urge the government not to interpret this transfer of the case as consent to begin implementing the adoption of Maisha Namba before the full determination of the cases and putting in place reforms and safeguards to address the weaknesses of the system.
While announcing the pilot phase of the Maisha Namba project on November 1, 2023, PS Bitok had noted that the trials aimed to identify gaps with the digital ID system before the official launch across the country and had informed the public that transitioning to the new generation national IDs, Maisha card, would take a period of 2-3 years.
Further, the government has also maintained through several media briefs and in consultations with stakeholders that digital identity would not be mandatory. However, the government has now spurned the printing of the second generation national identity cards to exclusively issue Maisha Cards. effectively forcing all Kenyans seeking IDs to sign up for Maisha Namba.
This raises the prospect of Maisha Namba grievously disrupting people’s lives and having a profound impact on equity and access to ID cards for many Kenyans, particularly for the about 5 million people, who are indiscriminately locked out of or delayed in obtaining national ID cards due to discrimination and millions more who face obstacles like cost or being in rural areas far from registration centers.
It could also create a situation where the Maisha Namba digital ID becomes mandatory to access public and private services as was the case with Huduma Namba. This would disproportionately disadvantage those who don’t have Maisha Cards.
Moreover, given that multiple cases challenging the constitutionality of the Maisha Namba project are still due for hearing and determination before court, any court decisions declaring the project unlawful would have a serious effect on people’s ability to acquire nationality documents.
For instance, between December 2023 and February 2024, an estimated 600,000 Kenyans who had applied for IDs could not access their ID cards because the government began issuing only Maisha Cards to applicants, in violation of court orders. The few people who were lucky to obtain the Maisha Card also struggled to use it. Had the government put in place complementary measures including maintaining issuance of the current national ID cards, this problem would have been averted.
We note that the challenges Kenyans have already witnessed, barely three months into the pilot phase of Maisha Namba project, demonstrate how rolling back the harm and risks, not to mention the loss of public funds, would be almost impossible once the project is adopted.
We are also concerned that Maisha Namba does not address well documented flaws under the previous Huduma Namba project and the current citizenship processes that actively discriminate against minority and marginalized communities in Kenya. For the people who face challenges, such as ID vetting, distance or accessibility challenges, or even lack of digital infrastructure, in accessing nationality documents the risk of exclusion is heightened.
As a result, people who currently lack documentation such as birth certificates or ID cards will be unable to access the benefits of Maisha Namba as it will be issued based on existing population databases. Other major questions on the Maisha Namba eco-system including lack of a comprehensive legal framework, lack of public participation and consented opt-in, privacy and data protection concerns also loom large.
The Maisha Namba digital ID legal framework was created through the gazettement of regulations inserted to the Registration of Persons act and the Births and Deaths Act. This was not subjected to public participation as the constitution mandates.
The Maisha Namba Ecosystem as proposed also presents privacy concerns particularly by proposing a centralized digital ID system, which without regulatory safeguards are vulnerable to surveillance or unauthorized access by third parties.
Considering these challenges ushered by the rollout of Maisha Namba, we would also like to urge the government to reverse making digital ID mandatory and instead focus on voluntary enrollment through civic engagements and public awareness to secure buy-in from various segments of society, put in place a comprehensive legal and data protection framework to govern Maisha Namba, develop a transition trajectory, and prioritize those who lack documentation and guarantee their inclusion by ensuring they are issued with identity documents before the project is implemented.
1. Nubian Rights Forum
2. Kenya Human Rights Commission
3. Article 19 Eastern Africa
4. Centre for Minority Rights Development (CEMIRIDE)
5. Namati Kenya
6. Defenders Coalition
7. Haki na Sheria Initiative
8. Access Now
9. Protection International - Africa
10. Haki Centre
Human Rights Organizations Urge Government to Expand Consultations and Safeguards before Unique Personal Identifier/Maisha Namba Rollout
In a letter to the State Department for Immigration and Citizen Services Permanent Secretary, Julius Bitok, we urged the government to take immediate action to ensure the enactment of proper legislation, meaningful public participation, access to critical documentation (birth certificates and ID cards) for all Kenyans, and adequate data protection measures and adherence to the law in the process aimed at creating a digital identity system in Kenya.
We further wish to remind the government of the unacceptable consequences of discrimination, eroding of privacy and exclusion for communities that have historically struggled with access to documentation that were witnessed with a similarly hurried and flawed implementation of Huduma Namba.
We reinforce that the opaque rollout, lack of public engagements and a lack of proper procedural and legal safeguards associated with the Unique Personal Identifier/Maisha Number rollout would wreak havoc on the ways citizens access nationality documents.
The push towards creating a digital identity eco-system will assign individuals a lifelong unique identification number starting from birth and eventually serve as an ID number with the processing of the third generation identity cards beginning in the next 20 days.
The digitization process will also result in a consolidated National Master Population Register that will merge existing and independent databases into a single register of data on Kenyans and foreigners in the country.
However, steps needed for identification system upgrade and reforms have been glaringly lacking in this new introduction of Maisha Namba. Wider broad-based engagements with the public, civil society and other stakeholders have been non-existent, and to that end, the current efforts of the government to develop digital ID are cascading dangerously towards the pitfalls that stalled Huduma Namba.
“We are at a critical moment. A move to digital IDs is not a minor change but one that significantly changes how legal identification is administered in our country. As such, we need to get it right and improve access to nationality, data protection and individual’s privacy rather than erode it.”
“We experienced firsthand in our communities the harms of digital identity systems, where it locked out people who struggle with documentation, denied citizens services, excessively collected personal data and impeded fundamental freedoms.”
The government should use this opportunity to initiate a cross-stakeholders powered process with a transition period to ensure a smooth rollout of digital ID.
On 14th August 2023, the government of Kenya and the United Nations Development Program (UNDP) signed a Memorandum of Understanding (MOU) that effectively set the stage for the rollout of digital identity in Kenya.
Speaking during the signing of the MOU, Citizen Services Prof Julius Bitok said that “the digital identity project was crucial, and that the partnership would also factor in the role of stakeholders and interest groups to ensure that the envisaged digital ID gained from a broad
inclusion of ideas and acceptance.”
In the same spirit, PS Bitok met diverse civil society organizations in February 2023 to forge a partnership towards addressing the concerns with digitizing identity systems and reforming discriminative and marginalizing processes especially for many from our most vulnerable communities who face hurdles in obtaining nationality documents.
At the meeting, PS Bitok indicated that this administration was committed to continuous engagement and collaboration and to walking together with civil society as to any creation of a unique personal identifier. PS Bitok committed to conducting extensive public awareness on the system, ensuring public participation, conducting data protection impact assessment, doing away with vetting and exclusion and forming an inclusive working group to embark on reforms of the identification system in the proper manner to ensure any actions truly serve the needs of all Kenyans.
The commitment statements made by the PS at the time on public participation, transparency, engagement, and accountability have, however, not manifested in practice.
There has not been a single public participation forum or other channel created to solicit input and feedback from the Kenyan public. No data protection assessment has been made public, no public awareness has been conducted, and no safeguards have been put in place
to ensure Kenyans who have struggled to obtain documentation can acquire a UPI or related government services.
We therefore, call on the Government of Kenya, in particular the Ministry of Interior, to halt the roll-out of the unique personal identifier until the following minimum steps are undertaken and met in a public, transparent manner:
- Enact a proper legal framework to govern the system that is fully grounded in the Constitution and aligns with requirements from the High Court judgment in Nubian Rights Forum et al. v. the Honourable Attorney General of Kenya et al.
- Conduct meaningful nation-wide public participation on the proposed legal framework, any draft regulations, and the system design
- Abolishment of ID vetting for all Kenyans
- Implementation of affirmative action measures to issue documents to all persons who have been excluded or been unable to obtain the same due to the historical previous existence of vetting processes over the past several decades
- Ensure all Kenyans have access to documentation (birth certificates and ID cards) before moving forward with digitization, including through the expansion of the number of registration and identification offices and resourcing of these offices, especially in underserved areas of Kenya
- Conduct a robust Data Protection Impact Assessment and Human Rights Impact Assessment of the system that are made public for scrutiny and from which improvements will be made to the system design
- Inclusion of civil society and members of the public, including minorities and marginalized communities in line with Article 56 of the Constitution of Kenya, 2010, in any relevant working groups or committees, including the National Digital Identity Technical Committee and National Steering Committee for Digital Identity mentioned in the media on September 12, 2023
- Allow for a transition period prior to any roll-out to ensure time for the above steps, improve infrastructure such as electricity and internet nationwide, and any other needs identified by the Kenyan public
1. Nubian Rights Forum
2. Namati Kenya
3. Centre for Minority Development
4. Kenya Human Rights Commission
5. Defenders Coalition
6. Access Now
7. Katiba Institute
8. Haki Na Sheria Initiative
9. ARTICLE 19 Eastern Africa
10. Pastoralists Rights and Advocacy Network