Huduma: AG says judge biased against the State

Huduma Namba was rolled out in 2020. [File, Standard]

Attorney-General Kihara Kariuki has accused a High Court judge of bias against the government.

In his appeal over a ruling barring the Stare from rolling out Huduma Namba cards without conducting data protection impact assessment, the AG claimed that Justice Jairus Ngaah was prejudiced against State.

“The learned judge of the superior court admits to bias against the State and the applicants in the exercise of his discretion contrary to the principles of equity before the law,” stated Justice Kihara.

According to the AG, Mr Ngaah had in a case filed by the Senate against the National Assembly stated that he knew that there was an appeal on Huduma Namba but went ahead to issue orders barring the government from rolling out Huduma Namba cards until it conducted data protection impact assessment.

“The learned judge misdirected himself in law by finding that there was no other scale upon which to weigh the actions of the State to collect and process personal data except that provided by the Data Protection Act,” he continued.

High Court had found that the government violated the law when it first rolled out the cards without conducting data protection impact assessment. Justice Ngaah found that the rollout in November 2020 was against the law on data protection, rendering the cards invalid.

Huduma Namba was rolled out in 2020. The first recipients of the new cards were President Uhuru Kenyatta and First Lady Margaret Kenyatta.

However, blunders by government officials have put the project, which gobbled Sh10.6 billion of taxpayers’ money, on the chopping board.

The government has twice been on the receiving end over the project. Earlier, Justices Ngaah, Anthony Ndung’u and Teresiah Matheka invalidated 23 laws enacted by the National Assembly without consultation with the Senate. This included Data Protection Act.

Attorney-General Kihara Kariuki. [File, Standard]

Following the verdict by the three judges, Justice Ngaah faulted the government for collecting and processing data based on the invalidated Act. “The order of certiorari (review) is hereby issued to bring into this honourable court and to quash the respondent’s decision of November 18, 2020 to roll out Huduma Card for being ultra vires on Section 31 of the Data Protection Act, 2019,” ruled Justice Ngaah.

Data Protection Commissioner Immaculate Kassait was appointed on November 6, last year to head the new office. Two days later, a case landed on her desk over the data collected by government with the aggrieved being Prof Yash Pal Ghai of Katiba Institute.

The grievance was that the government did not provide a guarantee against theft or misuse of Kenyans’ personal information. At the same time, Ghai questioned its failure to register Kenyans afresh and conduct data protection impact assessment, a requirement provided by the Data Protection Act.

In court, the human rights lobby argued that the government put the horse before the cart. According to Katiba Institute, the government ought to have enacted a data protection law first, then amend the Registration of Persons Act before rolling out the Huduma Namba exercise.