Court proceedings began on Monday for the consolidated petition challenging the fairness and constitutionality of the Maisha Namba Digital Identity Ecosystem.
The petition was filed by Haki Na Sheria Initiative on 20 December 2023 on the grounds that the new Maisha Namba ID system failed to address flaws in Kenya’s identity system that openly discriminate against certain groups, violates the right to privacy and that its rollout lacked due process and public participation in lawmaking.
During the hearing at the Milimani Law Courts, the presiding judge Lawrence Mugambi, heard from two expert witnesses on the exclusion risks, privacy concerns and the inadequate legal framework, considering the extensive changes proposed by the Maisha Namba system including biometrics collection and centralized access to the population register.
The expert witnesses argued that the existing problems in the ID system that actively discriminates against about 5 million Kenyans leading to their lack of identification had not been addressed by Maisha Namba and would only be made worse by its rushed and mandatory rollout.
“The Maisha Namba system assumes that everyone can prove that they are a Kenyan. Our chief concern is that there are communities that have not been able to acquire national IDs or birth certificates for their nationality to be recognized,” expert witness Laura Bingham told the court.
The expert witnesses also highlighted the difficulties faced by those without national IDs or birth certificates in joining the new ID system.
“People require an existing form of an ID to enrol into the Maisha Namba ecosystem. Proof of nationality is more relevant than ever in the Maisha Namba regime. For millions of Kenyans who lack any form of identification, the Maisha Namba system lacks any meaningful remedies to ensure their inclusion,” the court was told.
The expert witnesses also underscored concerns about building a centralized database of biometric information and a unique personal identifier (UPI) number that can be seeded or linked across government agencies warning of the vulnerability to data breaches and the lack of citizens protection from surveillance.
“A lot of individuals personal data including facial and iris scans will be collected by Maisha Namba. Citizens would be left unprotected from data breaches, exclusion and even surveillance.”
“You can change your password, but you cannot change your biometrics,” said Tom Fisher, a senior researcher with Privacy International.
The Maisha Namba petitioners call on the courts to mandate the government to address these systemic issues by:
1. Implementing affirmative action measures to issue identification to all Kenyans, especially those previously excluded from accessing documents due to the historical existence of discriminatory vetting.
2. Ending ID vetting and differential treatment of ID applicants in all forms.
3. Conducting, making public and implementing a Data Protection Impact Assessment (DPIA) on Maisha Namba to identify and mitigate risks to citizens privacy in compliance with the Data Protection Act and a Human Rights Impact Assessment to ensure the equal delivery of people’s constitutionally guaranteed rights.
Nubian Rights Forum
Paranet
Namati Kenya
Haki Center
The Kenyan Section of the International Commission of Jurists (ICJ Kenya)
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ARTICLE 19 Eastern Africa
KICTANet
Kenya Human Rights Commission
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