Contributor: Laura Goodwin, Yasah Musa, Emmanuel Okiri
Organization: Namati, Nubian Rights Forum
Last update:
Chapeau
Kenya stands out as one of the (or the only so far? Maybe the first?) country that has successfully used litigation to hold back the roll out of a digital identity system – twice. This is in part thanks to [training judges on the risks and harms of digital ID]. The fight continues as the government continues to try to put a fresh coat of paint on the same idea and try again. Civil society organizations continue to advocate for [].
1.1. Which are the specific laws creating and regulating Digital ID and what is their hierarchy (constitutional, organic laws, regional/sub-state laws, regulations, procedures)?
- The legal provisions on digital ID are anchored in broader legislation on identification. There is not yet a complete law on digital ID or the proposed system. Prior draft legislation that was aiming to consolidate these laws, such as the Huduma Bill, 2021, has yet to be passed.
- Registration of Persons Act – Section 9a, created by the Statute Law Miscellaneous Act, 2018
- Regulations
- Registration of Persons (National Integrated Identity Management System) Rules, 2020
- Data Protection (Civil Registration) Regulations, 2020
- National Information, Communications & Technology Policy 2019
1.2. What is the definition of Digital Identity brought by the Law or regulation, if any?
- None
- Policy refers to digital ID as a tool, also referred to as “universal personal identifier”
1.3. Which are the corresponding Data Protection laws, if existing?
- Data Protection Act, 2019
1.4. What are the main elements of the Digital ID framework (scope, eligibility criteria, remedies)?
- Scope – Kenyan citizens and registered foreigners resident in Kenya (according to the law). The intention is that the digital ID “number” would be issued to both adults and children in these categories. However, this provision is in a law related to national identity cards and that law explicitly states that it only applies to Kenyan adults over the age of 18.
1.5. Are there specific complaint mechanisms foreseen in the Digital ID and Data Protection laws?
- Digital ID – no
- Data Protection – yes
1.6. Was public participation ensured when these were drafted and enacted? How?
- No – in particular due to the use of a Miscellaneous Amendments Act
- There was some public participation on the draft Huduma Bill, 2019 and Huduma Bill, 2021. For example, one forum on Huduma Bill, 2019 only held in the capital Nairobi. However, these draft pieces of legislation were never passed. Little of the public input was incorporated into revisions.
- No public participation on current 2023 proposals to date.
- (Summarize what the court said re: public participation)
1.7. Was there a Human Rights Impact Assessment prior to the enactment of the laws?
- No
1.8. Does the country’s Digital ID framework reflect any particular digital ID model existing elsewhere (e.g., similar/comparable to X country)?
- Not really, because the framework is not robust
1.9. What is the interrelation of these Digital ID laws with existing nationality laws (does Digital ID reflect nationality status, is nationality an eligibility criterion or only legal residence)?)
- The legal provisions on digital ID are embedded in a law on registration/identification of persons/Kenyan citizens. However, the digital ID will also apply to citizens and resident foreigners. Presumably, based on prior registration and statements by the government, the number or credential will differentiate between Kenyans and foreigners. In prior mass registration (for Huduma Namba), Kenyan adults had to produce a national identity card to enroll and children had to produce a birth certificate to enroll.
- In 2023, despite the lack of a new legal framework or regulations, the government descriptions of the proposed system are closely linked to nationality – including the intention to verify parent details, including nationality when issuing a child with a unique number.
1.10. Court cases: Is there litigation going on? Has there been prior litigation? What are the specifics of those cases (list and summarize)?
- Yes – 4 cases
- (Summary)
1.11. How has Digital ID been rolled out?
- For Huduma Namba, the digital ID was rolled out backwards – using a miscellaneous amendments act to provide a purported legal basis, conducting nationwide mass registration prior to any dedicated legislation on the digital ID or data protection, and conducting a data protection impact assessment as an afterthought. As a result of this and related litigation and advocacy, public buy-in has reduced over time.
- In 2023, lots of announcements without transparency on what’s happening. The process – rolling out prior to the legal framework – seems to be the intention again.
1.12. Has there been any special measures to ensure access for vulnerable and isolated communities (e.g., for PwD, minorities, elderly) such as mobile offices or free legal aid? Are those measures provided for in law?
- No – and there are severe risks of exclusion of many of these groups, especially due to ethnic and religious discrimination embedded in Kenya’s identification and registration systems
- There is some discussion outside of the law on providing alternate options for biometric capture for people who may not be able to reliably provide fingerprints, etc.
- Civil society groups are providing both direct support (i.e., paralegal support) and advocacy support to try to influence the system in a more inclusive direction