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Defenders Coalition and partners submits memoranda to Kenyan parliament on Huduma Bill 2020


Read the the Huduma Bill 2020 here

 

Huduma Bill 2020 Analysis & Recommendations

Overarching issues:

Detailed Analysis and Recommendations:

Section

 

Questions and Proposed Changes Reasoning
2. Interpretation “Biometric data”: Define biometric data in a more technical sense without referring to specific biometrics. Another section could specify what types of biometric data are actually needed for purposes of identification; other types of biometric data should not be mandatory nor included in the bill

“Resident individual”: Expand the definition to include stateless persons

“Authenticate”: Add definition

“Identity”: Add definition.

 

The current definition of biometric data is too expansive and there is no limitation in the bill about what is necessary for identification versus other functions

 

The current definition of resident individual excludes stateless persons from NIIMS and the registration processes set out under this Act.

 

Despite repeated use of the terms “identity” and “authenticate” in the draft bill, the terms lack a definition. In addition, “authenticate” is used in a broad way (“authenticated by biometrics”) that could open up use of various technologies including facial recognition due to the lack of a set definition of what authentication means.

3. Objects Section 3 on Objects of the Act should give effect to specific Constitutional and other rights this bill should be advancing, including:

·       Right to a Kenyan passport and any document of registration or identification issued by the State to citizens

·       Right to a nationality from birth (and proof of nationality)

·       Registration of stateless persons

·       Right to birth registration / Universal birth registration

 

Section 3 should include as an Object the establishment of a governing body that will be in charge of NIIMS.

 

Section 3 should also mention that this Act limits the Right to Privacy and mention to what extent.

This Act should not focus on bringing in technology, but about enhancing access to identification and access to proof of nationality in the country. This focus should reflect in the Objects of the Act.

 

As written, the content of the bill goes beyond the stated objects (i.e., use of NIIMS for the voter register).

 

Currently, none of the Objects reference governance of NIIMS, which is critical given how expansive the system is intended to be and how many areas of life NIIMS will affect.

 

Part II Establishing a governing body for NIIMS should be the first step, prior to the establishment of NIIMS in section 4.

The NIIMS Coordination Committee as proposed in section 67 cannot be responsible for day to day implementation of NIIMS. The Committee, as constituted, is more for general oversight.

The law should create an independent body responsible for NIIMS that can report to the NIIMS Committee and to Parliament. This governing body will be responsible for setting out implementation guidelines, establishing appeals and grievance redress mechanisms, and other functions prior to the start of NIIMS implementation.

 

The law must also establish who is the registrar as the officer in charge of NIIMS (registers must have a registrar, as evidenced in other laws) as well as clearly define down to the lowest level of administration the other officials under NIIMS.

 

Normal practice is to establish a body then that body is in charge of the system – but part II first establishes a database/register and makes the technology higher than governance institutions and humans.

 

It is not clear how individuals can exercise rights granted in this law. For example, where should one go to rectify or update data.

 

If an individual has a problem related to NIIMS – how do they approach the system?

 

7. Huduma Card 7(1) The Huduma Card should contain limited data on the face of the card. The Huduma Namba, nationality, and resident status of an individual may be excessive information for the card itself.

 

 

7(2) The need for a Minors’ Huduma Card is not clear, as children will have been issued with a Huduma Namba and have the number on their birth certificates.

 

At six years, reliable biometrics cannot be captured nor can informed consent be given by a child.

 

The birth certificate with Huduma Namba should be sufficient for children.

 

 

7(2) should be amended to include issuance of Huduma Namba and Huduma Cards to stateless persons who are present in Kenya. The definition of resident individual must also be expanded accordingly.

7(3) should clearly state who is responsible to consider advances in technology and decide if a non-physical digital identity should be issued, as well as what guidelines may be appropriate for such decisions.

Including all of this information on the face of the Huduma Card is a danger to identity theft or other breach of data.

 

 

What will a minor be using their Huduma Card for without their guardian, or in a way that the birth certificate is not already sufficient?

 

Currently, millions of adult Kenyans lack documentation, and issuing Minors’ Huduma Cards seems like a misapplications of funds rather than putting resources towards expanding coverage of Kenya’s identification system.

 

 

Currently stateless persons are excluded from all aspects of the NIIMS system and will be further marginalized due to inability to access any services or rights linked to Huduma Namba.

As written, 7(3) is broad and difficult to implement.

8. Proof of Identity The language in section 8 should be amended to be more clear that while Huduma Namba may be sufficient proof of identity to access a public service or conduct a private transaction, it is not mandatory. (Related sections, such as section 9, may also need similar adjustment.)

Change “biometrics” to “biometric data” or provide a definition for biometrics

Lack of proof of identity should not deny anyone access to services, especially emergency services.

Section 8 refers to authentication by biometrics, but this is not a defined term in the bill. The text of section 8 should either refer to “biometric data” or a definition of biometrics should be added in section 2 for clarity.

Part III Add section on initial enrollment and a transition period, as NIIMS is a new system.

The current draft bill does not adequately acknowledge the existing registration and identification laws and systems and what is required to move from one system to the next effectively.

 

The law must provide for a transitional period for enrollment into NIIMS, in particular for those without registration documents and for those in the process of obtaining an ID card under existing laws. The law should reference existing documents and how people holding birth certificates and ID cards can automatically transition into NIIMS, with appropriate safeguards.

 

Need a multi-year (5 year) transition from the current Registration of  Persons Act to the Huduma Act.

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.

The government must also be responsible for ensuring everyone is registered, including through conducting outreach and implementing mobile registration campaigns, as opposed to expecting people to avail themselves. Expanding coverage first is particularly important given the heavy time, distance, and cost burden that exists in the current registration and identification system – leading many Kenyans to lack proof of identification at present. The transition period will also allow for intensive public education on NIIMS and the process of enrollment and using the new Huduma Namba.

10. Enrolment of Adults 10(1)(b) Remove “any documentary proof as may be required”

 

 

 

 

 

 

10(1) If an applicant meets the requirements set out in section 10, the bill should state “the NIIMS Officer shall enroll” the adult applicant.

 

10(2) Add that applicants will be informed also about the Data Protection provisions of the Huduma Act, and that they should be informed about data storage and use

 

 

 

 

“Any documentary proof as may be required” is very broad and can lead to exclusion of certain groups that struggle to obtain documents. The law must allow flexibility in how an applicant can prove his or her identity for enrollment into NIIMS, in order to improve inclusion.

 

 

Duties must also be placed on civil servants.

 

 

Applicants should also be aware of the safeguards in the same Act. How people will be informed may also need to be specified in the law – so that it’s not just providing a piece of paper but genuine education about data protection, privacy, and the workings of the system.

12. Assigning of Huduma Namba Add a time limit of 30 days in both Section 12(1)(b) and 12(2)

 

Add specific grounds on which someone’s application for enrollment may be declined

 

Add more information on how to exercise right of appeal

Without a time limit, applicants may seek enrollment into NIIMS and be left pending for months or years while waiting for a response.

 

The bill includes grounds for revocation but not grounds for denial of enrollment.

 

Given that Huduma Namba may be a primary way through which people can access services and transactions, denial of enrollment may have severe material and tangible consequences for individuals.

 

13. Issuance of Huduma Card In 13(3) delete “to a citizen” As written, the initial issue of the card is only free for citizens – not for foreigners, refugees, or stateless persons – which may put an undue burden on vulnerable populations to be able to obtain a Huduma Card under NIIMS. Initial issuance should be free for all enrollees.

 

14. Transitioning Minors’ Huduma Card In 14(a), remove “verify and update”

 

 

Consider adding a mechanism for informed consent as a minor transitions to an adult, otherwise children, once adults, have no choice in this process

“Verify and update” is too vague and allows too much unregulated discretion to NIIMS Officers

 

There should be a separate decision making process as the child becomes an adult in regards to their enrollment and data

16. Update of Particulars Add timeframe in which updates must be done

 

specify which particulars require updating

A timeframe will better guide both individuals and NIIMS Officers in following their respective duties

 

Schedule 1 lists a wide range of data; this places an unnecessary burden on both individuals (on whom the duty is placed) and the state for lack of clarity on how to administer such a broad provision.

17. Defining functional data into NIIMS Add specific limitations on how long data can be stored and on access to data

 

The provision currently gives an extremely broad allowance for agency access
18. Cancellation of Enrollment  

Remove Section 18(1)(c)

 

 

 

 

 

 

 

 

 

 

In 18(4)(b) change “may” to “shall”

 

 

 

 

The law should specifify what happens to data of individual whose registration is cancelled – is it kept, archived, deleted?

 

 

“Any other justifiable cause” invites arbitrary action. The other provisions sufficiently cover justifiable cases for cancellation and adequately safeguard against fraud and corruption.

 

There should be a very high threshold to cancel someone’s enrollment, due to the severity of impacts that would result.

 

 

 

There must be an internal review mechanism or other grievance redress mechanism set up in order to deal appeals on enrollment and cancellation decisions.

Section 19 & 20 There are inconsistencies in Section 19 and 20 that must be clearly addressed.

 

The government should register the birth of all children born in Kenya – not only those who are resident individuals and/or whose parents have a Huduma Namba.

 

 

NIIMS is a register of ‘resident’ individuals but not everyone in Kenya is captured under that term. While here the bill states in section 19 the births all children in Kenya will be registered under NIIMS, the definition of resident individual in section 2 and the particulars for registering a birth in section 20 limit whose birth can actually be recorded. These provisions undermine universal birth registration.

 

As this Act would repeal the Births and Deaths Registration Act, there would be no basis of registering the birth of children of stateless persons, foreigners temporarily in the country, or undocumented/those without Huduma Namba.

 

20. Record of Birth Martial status should be required from both mother and father, or neither

 

What happens if nationality of parents is not known or cannot be proven? The law should provide options or alternatives to ensure the birth is still registered properly.

2(b) and (c) discriminate between men and women

 

This could impact the ability of child to receive birth certificate and/or have their own nationality questioned.

24. Late Enrolment of Child Section 24 should allow late registration with no penalty if there is a reason.

 

 

24(2) Remove the graduated penalty

 

24(3) Remove “any relevant information” and “any further requirement”

 

A penalty or denial of late registration punishes child for something that is not their fault and locks child out of the system.

 

A penalty – and especially a graduated penalty – could be a deterrent to completion of birth registration.

 

Kenya has not yet achieved universal birth registration. Given NIIMS is a new system, it’s not clear how births that are currently unregistered will be incorporated into the system. This further supports the need for a section on a multi-year transition period from the current system to NIIMS.

 

Section 24(3) is too broad and leaves too much discretion to the NIIMS Officer.

26. Registering new-born foundlings Change the title of section 26 to refer to all foundlings – not only new-borns

 

Amend 26 so that the person who found the child should give information they have to police or those in whose charge the child is placed, but not necessarily have burden to register them in NIIMS

 

 

Add a provision to waiver the fee or requirements for late registration so that section 24 does not apply in full.

 

 

 

 

Shifting responsibility for registration to the person who found the child is too high of a burden, and may lead to less assistance for foundlings and/or unregistered foundlings.

 

 

Without a waiver, section 24 may prevent the late registration of a foundling.

28. Update of Particulars of a Child Refine this provision to specify which particulars require updating and in what timeframe, in order to better guide parents of enrolled children and NIIMS Officers. Refer to First schedule or even more narrowly defined set of particulars if possible.

 

Remove “continuing basis”

This language of “attainments and other specified vital events” is usually used in clinic cards – and does not appeal in the first Schedule.

 

“Attainments and other specified vital events” as well as “on continuing basis” are phrases which are vague and impose an unclear and impractical duty on parents.

30. Biometrics of a Child 30(2) Replace “may” with “shall” For a child already enrolled in NIIMS and who provides biometrics in line with Section 30(1), the issuance of the Huduma Card should be automatic and not left at the discretion of a NIIMS Officer.

 

 

31. Universal registration of deaths 31(3) reframe “any requirements” to be more specific as to what an applicant may need to provide to register a death after 30 days

 

 

As written, “any requirements” is too broad and subject to abuse. With a limited period (30 days) to register a death, there may be many people seeking to complete the death registration process after the initial deadline. If NIIMS Officer have unchecked discretion to impose requirements, the result will be many deaths unregistered, which is not in anyone’s interest and undermines universal registration of deaths. Given failure to register a death is also an offence under the bill, the requirement must be clear, specific, and reasonable so that it can be followed.

 

 

38. Huduma Namba of a Deceased Person Add content in section 38 to specify what happens to the data of a deceased individual after their death is registered in NIIMS

 

 

The current bill does not specify whether a person’s data is kept, archived, deleted, or handled in another way after they are registered in the system as deceased. It is also not clear who would be able to access the certificate of death mentioned in section 39 and for how long access to the certificate would be possible.
40. Failure to register death In practice, what will it mean to seek out a NIIMS Officer to register a death? Is it feasible within just 30 days?

 

Current practice is that one can seek a burial permit at a very local level, then proceed to bury a body and use the burial permit to process a death certificate.

 

The bill would require one to seek out a NIIMS Officer. How decentralized will the NIIMS administration be? Will this requirement put a burden on an applicant – particularly concerning as failure to register a death is an offence.

41. Right to a Passport Clarify in the bill if other documents (birth certificate, Huduma Card) are also evidence of citizenship – this is explicit in the bill

 

In the bill, only a passport (in section 41(3)) is explicitly noted as evidence of citizenship. Given the cost of a passport and the fact that many Kenyans do not possess a passport, it would be useful to clarify in the bill if other documents – such as a birth certificate or a Huduma Card, both of which will include the person’s nationality on the face of the document – are also evidence of citizenship, as they will be more accessible.
42. Issuance and Replacement of a Passport

 

 

 

Remove 42(4)(b) “Make any further verification as may be necessary” is too vague and allows too much unregulated discretion to NIIMS Officers in processing an application or a passport. Considering someone is already producing their Huduma Namba and Huduma Card in applying for a passport (under 42(2)) there is no need to conduct further verification.

 

46. Rejection of a passport application Remove 46(1)(a)

 

 

While we do not yet know how simple or burdensome updating particulars in the NIIMS database will be – passports can be rejected for lack of updates.

 

The Constitution emphasizes bringing services closer to people – but now new barriers are introduced: if you haven’t updated your particulars as an individual, your passport is rejected.

 

These kinds of requirements may also create an avenue for corruption.

 

48. Access to Information Legitimate interest of collecting and storing data must be stated

 

 

 

 

 

 

Add time limitation for data storage

 

 

Define and limit who has authority to access data

 

 

Limit the collection/storage and access to meta data – no meta data should be collected

This Act should state what the legitimate interest is for keeping data as this is a limitation to right to privacy. (and whether it’s all data or some data like biometrics or data of the deceased will continue to be stored), sharing of data with third parties

 

Is data held in perpetuity? If so, is all data treated the same or are there different categories of data? (For example, foundational data versus Record History and Registration History as included in Schedule 1)

 

Metadata is generated when someone uses a Huduma Namba (i.e., information on who is authenticating someone’s identity, when, where, how often) and collecting such data without limiting access and use could lead to severe violations of the right to privacy. In addition, without limitations on metadata, private entities could store data and form their own databases.

 

 

49. Restriction on data sharing Add whether there are any thresholds or requirements for private entities to gain access to foundational data of an individual, and for what purposes.

 

Overall, the bill needs to be clear about who has authority to access the NIIMS Database and NIIMS data.

 

49(2) is inconsistent with provisions above on the Huduma Card and birth certificate

 

Can any private entity access the data or are there any requirements on who can access? This is essential to ensure privacy and data protection.

 

 

 

 

49(2) states the Huduma Namba will never be published, displayed, or publicly posted – but the Huduma Namba is on the face of the Huduma Card and on the birth certificate and presumably will be regularly shared with public and private entities for access to services and transactions, and may be recorded by those entities.

 

Part VII – Offences and Penalties The bill should clearly state what offences may be committed by NIIMS Officers and what the consequences or penalties are.

 

Include corruption and failure to/delay in issuing a Huduma Namba as potential offences of NIIMS Officers.

 

 

There is too much emphasis on offences of individuals rather than the NIIMS Officers who have more power and more access to sensitive data in their roles

 

 

60. Penalties for failure to give information, etc. Remove Section 60 Offences should be focused on actions that are fraudulent or done in bad faith – but not for actions such as failing to register, not updating details, or not providing information
63. Measures to Ensure Inclusion

 

 

Section 63 should specifically reference Kenyans and stateless persons who lack proof of identification as well as people with poor biometrics.

 

 

This section is not sufficient to promote inclusion in practice, especially given lack of universal coverage of Kenya’s current birth registration and national ID systems as well as a history of deeply embedded discrimination in the identification system.

 

The High Court of Kenya required the Government of Kenya to enact a regulatory framework to address a number of issues related to NIIMS, including how Kenyans “without access to identity documents or with poor biometrics will be enrolled in NIIMS” (para 1045) yet nothing in the draft bill even attempts to address these issues.

 

 

67. The NIIMS Coordination Committee

 

 

Change committee to a commission or agency with more administrative power

 

 

Include representation of other relevant agencies, entities, and people on the committee:

·       Data Protection Commissioner

·       Ministry of Social Welfare

·       Ministry of Health

·       Department of Refugee Affairs

·       Civil society organizations

·       Affected Kenyan and other communities

 

 

 

The committee currently has a large mandate and needs to be established with the proper administrative power, potentially also reporting directly to Parliament.

 

See comments above on Part II about the need to establish a true governing body for NIIMS, rather than only an oversight committee.

 

The law may also need to create separate departments for civil registration, Huduma Card issuance, and passports for efficiency, even if all departments are operating under the Huduma Act.

68. Functions of the Committee Add establishment and oversight over appeals and grievance redress mechanisms for all NIIMS-related processes (enrollment, updating of particulars, issuance of birth certificate, issuance of Huduma Cards, issuance of passports, issuance of death certificates, etc.)

 

Given the implications of not being enrolled in NIIMS, such as denial of public services or inability to complete private transactions, there must be an internal review mechanism or other grievance redress mechanism set up in order to deal appeals on enrollment and cancellation decisions as well as issuance of various related documents.

 

72. NIIMS General Design

 

Add more information on architecture of database (i.e., open source) as well as any limitations on linking the database to others There is not enough information in this section to ensure proper structure and design of NIIMS, including necessary limitations

 

74. Repeals The bill should include provisions for a transition period, rather than repealing these other identification and registration laws without providing for a smooth transition. See comments above on Part III and the need to add a new section on initial enrollment and a transition period, as NIIMS is a new system.

 



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