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To: Clerk of the National Assembly

P.O. Box 41842-00100

Nairobi

From: Coalition of Civil Society Organizations

Date: January 7, 2022

RE: The Huduma Bill (National Assembly Bill No. 57 of 2021)

Dear Michael R. Sialai, Clerk of the National Assembly, & the Departmental Committee on Administration and National Security: We submit this memo on The Huduma Bill as a coalition of Kenyan civil society organizations with expertise in issues of identification, civil registration, nationality rights, data protection and privacy, minority rights, children’s rights, human rights, and other related issues.

The Huduma Bill is proposing the largest set of changes to the legal framework governing Kenya’s identification system since before independence. If enacted, the Huduma Bill would become the single law anchoring birth and death registration, issuance of identification cards, issuance of passports, and governance of the National Integrated Identity Management System (NIIMS, also referred to as Huduma Namba). As such, the draft legislation, system design, and all other decision points around NIIMS must be considered very carefully, comprehensively, and transparently.

In addition to the detailed analysis and recommendations that follow, we would like to call the Committee’s attention to several fundamental issues that must be addressed before determining whether or not to move forward with the Huduma Namba system.

● Public Participation: Given the extensive nature of NIIMS and that it will impact many areas of lives of all Kenyans, this bill and all related legislation and/or regulations require robust public participation across the country through which the government can receive and consider the views and suggestions of Kenyans and other residents of the country and incorporate them into the final version(s). At all steps in the legislative process, the government should provide full information by advertising opportunities to provide input into the Huduma Bill not only on print media and gazette notices, but also through social media, TV stations and radio to give room for more Kenyans to interact with the Bill and share their view. In-person public participation opportunities should be organized by the government in every county – in accessible locations, in vernacular languages, with sufficient notice, and with information (such as the latest copy of the bill) provided in advance to enable Kenyans to provide informed views. Following all public participation opportunities, including the current collection of memoranda, feedback should be provided to the public on what recommendations were received and how input has been taken into account in amending the bill or plans for NIIMS. The government must invest in building user trust and confidence on digital ID, including through meaningful and robust engagement on the anchoring legislation, the system design, and with the governing body for NIIMS.

● Risks of Exclusion: The Government must ensure all Kenyans can access identification documents such as birth certificates and national identity cards prior to moving forward with Huduma Namba. The draft bill does not sufficiently address concerns of exclusion that have been repeatedly raised over the past three years. It is critical to avoid importing issues prevalent in the current system of accessing birth registration, ID cards, and passports into the system proposed in this Bill. Those at risk of exclusion from NIIMS enrolment include Kenyans without identification documents, people with biometric challenges (such as unreadable fingerprints), persons with disabilities, street families and street children, and stateless persons. The High Court, in January 2020, also imposed a requirement on the government to establish a comprehensive regulatory framework that addresses how Kenyans without identity documents and people with biometric challenges can enroll in NIIMS – issues yet to be addressed in this bill or any existing regulations. Beyond risks of exclusion at the point of enrolment, there are no safeguards in the current draft bill to ensure against denial of services either for persons not enrolled in NIIMS or for those who are enrolled but who face challenges in the authentication or verification process at the point of accessing services or conducting transactions. Without significant changes, this bill will lead to the exclusion of millions of Kenyans and other residents in the country.

● Need for a Transition Period: The law must provide for a multi-year transitional period between the current Registration of Persons Act and the Huduma Act. The transition period must also address initial enrollment into NIIMS, in particular for those without registration documents and for those in the process of obtaining an ID card under existing laws. A transition period in which the focus is expanding coverage of birth registration and ID card issuance, prior to NIIMS enrollment, will help address challenges of those likely to be excluded from the system. A transition period would also allow for taking the public through proper civic education and comprehensive training of all government officials in registration and related agencies that would use NIIMS.

● Right to Privacy and Data Protection: The Government must ensure Kenya has a financially independent and well-resourced data protection authority, capable of discharging its mandate under the Data Protection Act. The government ought to ensure the swift adoption of the draft Data Protection Regulations (2021). Shall an individual misuse the biometric or personal data of a registered person, it can result into discrimination, profiling, surveillance of the data subjects and identity theft. The government must also ensure protection of whistleblowers who expose data misuse incidents.

● Policy Framework: Civil registration and identification are critical functions in a country as they provide individuals with a unique legal identity throughout their lives. Transitioning to a digital identity system such as Huduma Namba in a country where there exists a fragmented civil registration system is a complicated matter. The success of the Huduma Namba programme will be hinged on addressing the gaps and bottlenecks that have plagued Kenya’s civil registration and identification systems. There is a need for a holistic approach that is informed by evidence-based research, a comprehensive national policy on civil registration and identification, a robust strategy and an implementation plan with a clear road-map for the implementation of the Huduma Namba (NIIMS). The Bill, as currently drafted, is not informed by any of these foundational elements, which could portend challenges for the process of transition from paper-based systems, the current national identification card, and the various forms of identification under the numerous registration systems and government service providers.

● Governance and Institutional Framework for NIIMS: The NIIMS Committee proposed in section 65 is an oversight body and not sufficient to give effect to various rights that individuals have in the Constitution and in this draft bill (i.e., appeal a decision of a NIIMS Officer, update particulars, etc.). There is a need to establish an agency or commission as a competent, robust, and independent institution responsible for the planning, management, administration and implementation of NIIMS and the Bill. Such an agency would be in line with Sustainable Development Goal 16.6 to develop effective, accountable and transparent institutions. Please find attached a more detailed analysis and recommendations of selected sections – improvements to which would vastly strengthen the Huduma Bill and the NIIMS / Huduma Namba system, should it move forward.

We would be glad to provide further input and perspectives on the bill and how best to establish an effective, inclusive, and privacy-respecting identification system in Kenya.

Sincerely,

1. Heralding Development Organization

2. Undugu Society of Kenya (USK)

3. The Nubian Rights Forum

4. ARTICLE 19 Eastern Africa

5. Kenya Human Rights Commission (KHRC)

6. Kenya ICT Action Network (KICTANet)

7. Protection International Africa

8. Namati Kenya

9. Lawyers Hub Foundation

10. Defenders Coalition

11. Haki na Sheria Initiative

12. Haki Centre

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