Government through Interior ministry invited the public to give views and proposals on the draft Huduma Bill, 2019, by August, 5th, 2019.
The bill seeks to establish the National Integrated Identity Management System –NIIMS to promote efficiency in public services delivery, to consolidate and harmonise the law on the registration of persons. One of the basic obligations of a Government is to ensure that every person under its jurisdiction is recognised as a person before the law (Article 6 of the Universal Declaration on Human Rights).
This recognition is independent of the person’s appearance on any register. In practice, one of the most important steps towards ensuring this recognition and equal protection of the law is the registration of the birth of every person born in the territory of the state. The right to birth registration is a fundamental human right of every child (Article 7 of the UN Convention on the Right of the Child) and is not subject to the discretion of the State.
The bill, therefore, is an important step towards providing legal identity for all (including birth registration) by 2030, a target shared by the international community as part of the Sustainable Development Goals.
It is estimated 1.5 billion people in the developing world lack proof of legal identity. This “identification gap” is a serious obstacle to participation in political, economic and social life. Without a secure and trustworthy way to prove their identity, a person may be unable to exercise the range of human rights set out in international laws and conventions.
Identification schemes are key enablers for the effective delivery of services and more broadly for the quality of engagement between a country’s government and its citizens.
Huduma card will replace the National Identity card according to the government.
The concept of Huduma Card borrows heavily from India’s Aadhaar; the world’s largest biometric ID database.
In September 2010, the Unique Identification Authority of India (UIDAI) delivered the country’s first unique identification number, Aadhaar number. From its inception, Aadhaar-a Sanskrit word meaning ‘foundation’ or ‘base’. India’s parliament passed the AadhaarAct in 2016, seven years after the program’s inception and after more than a billion people had enrolled by giving their fingerprints and retina scans.
[Sample of Huduma Card].
Like Kenya, India’s introduction of its biometric ID database was also faced with scathing criticism that led to a slew of petitions challenging its legality.
However, India’s Supreme Court delivered a historic judgment that upheld the constitutional validity of Aadhaar scheme ruling that AadhaarAct doesn’t violate the right to privacy when citizens agree to share biometric data. It is perhaps this verdict which inspired Kenya’s trajectory into improving the acquisition of legal identity for its citizens.
Kenya’s NIIMS has been faced with equal criticism including a court case challenging the constitutionality of the process and its safeguards to citizen’s privacy.
Human Rights Agenda (HURIA) rapid survey during a public debate on Huduma Namba in Mombasa, 70 % of the respondents revealed that they did not understand the importance of the Huduma Namba, they only registered since they felt coerced to do so.
Despite the misconceptions, the government claims to have successfully registered over 18 million adults and children.
The presentation of the bill for public consultation is an important step by the government towards creating awareness and getting feedback on the law. However, considering the sensitivity of the matter, the period accorded is short and extension may help in raising awareness and resolve the mistrust.
The proposed bill presents several argumentative concerns that threaten the realisation of the right to legal identity as well as access to services.
According to section 8 of the proposed bill, every individual must present the Huduma Namba in order to access basic services such as universal healthcare and social protection amongst others.
Requiring residents to produce Huduma Card in order to access basic services is discrimination.
Accessibility to the services may affect the most vulnerable individuals in the community due to discrimination, physical, economical (affordability) and information barriers.
The issuance of the Huduma Card should be a right and not the obligation of the citizen to pursue. Shifting this obligation to citizens by making it mandatory is unfair. Acquisition of Huduma Card should be a right and government’s obligation to provide the card.
Issuance of mandatory legal identity credential should be free. Indirect costs of obtaining identification including fees for supporting documents and cumbersome administrative procedures should be minimised. The current Bill criminalises the acquisition of Huduma Card process with punitive and heavy fines that are unreasonable.
The National Council for Persons with Disabilities, for instance, requires PWDs to register and acquire an ID in order to access services. However, experience has shown that not all PWDs get registered due to physical and economic barriers. Even with registration, the cards have never been a panacea to better access to services. The card serves as proof of disability.
Ensuring that all individuals are now included in the NIIMS system can be a huge challenge, particularly for rural residents, the forcibly displaced, stateless persons, and other marginalised groups.
HURIA believes creating inclusive, secure, and trustworthy identification systems can empower individuals and enhance their access to rights, services, and the formal economy. Lack of legal identity hinders the ability of women and marginalised groups to exercise their civil and political rights and secure socio-economic benefits from the state.
It is critically that identification systems and identity data should not be used as a tool for discrimination or infringe on individual or collective rights. The bill must remove barriers to access and usage and disparities in the availability of information and technology. Legal identity is a right and there is need for a paradigm shift from the objectives of identification to the new paradigm of seeing identification as a form of enhancing one’s opportunities to enjoy human rights and freedoms.
[Yusuf Lule Mwatsefu is the Executive Director Human Rights Agenda-Huria].