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:

  1. 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.
  2. Conduct meaningful nation-wide public participation on the proposed legal framework, any draft regulations, and the system design
  3. Abolishment of ID vetting for all Kenyans
  4. 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
  5. 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
  6. 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
  7. 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
  8. 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

SIGNED BY:
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

A key champion in this struggle is a human rights defender and legislator, Hon Neto Agostinho Oyugi who represents Ndhiwa Constituency. He also chairs the Kenya Parliamentary Human Rights Association.

“Though some clauses were deleted we brought most of them back during the Committee stage. The change of attitude of the men as we came to the end of the process of enacting the bill was a great achievement as they became cognizant that domestic violence is not a women’s issue but a gender issue…a family issue thus the turnaround and eventual support,” says a determined Neto.

Passionate about equality, Hon. Neto supports human rights and the special protection of women’s rights. KHRC (Kenya Human Rights Commission), approached Kenya Parliamentary Human Right’s caucus to galvanize support of Members of Parliament to enact the Protection Against Domestic Violence bill. This was after the initial Bill was stripped down through various revisions. Enactment of this stripped down version would only have been a tick box exercise, where no real gains would be made for equality.

It is surely a milestone that a revised, comprehensive law was enacted. This law is a new dawn in how family relations and wrangles are managed and viewed in Kenya, signifying that Kenyans now recognize the negative impact of domestic violence and that the state is willing to do something about it.

Neto was involved in the drafting of amendments and he reintroduced them to the national assembly. He assisted in convening several meetings, including one that brought together almost 70 Members of Parliament to support the bill. KHRC reinforced this process through advocacy and lobbying to ensure quorum for the debate and enactment of the bill. This was only the beginning.

The representation of women in parliament remains low. Kenya has one of the lowest numbers of women in parliament in the region, despite gains made in industrialization, innovation and economic growth. Neto, with support from KHRC and others partnered to devise a formula to improve gender representation in parliament by realization of the ‘not more than two-thirds’ gender principle stipulated by the Constitution.

As a member of the Justice and Legal Affairs Committee of parliament, Neto consults with KHRC and other CSOs on the progress made by Parliament, relaying feedback on the legal, economic, social and political perspectives as well as the attitudes within Parliament. Neto took part in consultative meetings organized by KHRC to discuss possible strategies for a proper formula. These meetings resulted in Neto drafting an alternative bill with a formula on realizing the two-thirds gender principle after interactions with advocates of human rights and gender justice.

Recently there has been intensified discussion around the two thirds gender rule. Neto cites lack of political support for the realization and implementation of the two-thirds gender principle. A comprehensive strategy is required to ensure that those opposing gender equity do not quash this endeavour. The Chairperson of the Justice and Legal Affairs Committee has just introduced a bill to postpone the implementation of the two third gender rule, shunning all proposals presented by the technical working group and the Kenya parliamentary human rights caucus to which Neto says,“This has awakened the people of Kenya to the reality…we need a multifaceted approach and an… unusual way of protecting the provision on gender equality in the Constitution.”

The discussions and research to innovate on how to realize the two-thirds gender principle have invigorated all stakeholders to keenly ponder over various mechanisms of ensuring implementation. These deliberations should also lead to the creation of a consensus on the amendment of the constitution to entrench further realization of the two third gender rule in political participation. Such changes in legislation could set the pace for further gains in equality on other sectors across the society.

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