The identity card crisis

By Musyoki Kimanthi

Q: Is there a legal requirement that people must carry their National Identify cards with them wherever they go? Police seem to get excited, especially at night, when they bump into anyone not carrying this document.

A: The Registration of Persons Act, Cap 107 of the Laws of Kenya governs the issuance of national identity cards and offences related thereto. It is meant to apply to all persons who are citizens of Kenya and who have attained the age of 18 and above and where no proof of age exists are of the apparent age of 18 years and above.

The present day Act owes its origins to our colonial past. To ensure African labourers did not abscond, the colonial masters enacted the Registration of Natives Ordinance. Every time an African left employment, the employer had to sign the worker’s kipande as evidence that the African was not a labour deserter. This kipande had to be carried in a tin container around the neck and one had to produce it on demand by police or the administration.

The Kenya policeman’s routine question "wapi kitambulisho?" remains the most terrifying colonial relic especially among the young men in the slums.

The above position notwithstanding, the national identity card is regarded as the key identification document by all sections of the Kenyan authorities and authentication of persons. Since the insurgencies, which have been occurring around our borders and now the terrorism phenomenon, the necessity of having national identity cards for all citizens cannot be gainsaid.

What the law says

Section 10 of the Registration of Persons Act addresses the question of production and inspection of identity cards. Sub-section (1) states that any authority to whom a person applies for a grant of any licence, permit or other document…may require the applicant to produce his identity and if he fails to do so, the authority may defer consideration of the application until the applicant produces either his identity card or other proof. The inference to be drawn here is that the only detriment likely to be suffered by a person for failure to produce his identity card is lack of enjoyment of a service from an authority rather than criminal sanctions being visited upon him.

It could be that in demanding that young men produce kipandes the police are exercising powers conferred by section 10 (2) of the Act. It states: "During such times and within such areas as the minister may by notice in the gazette appoint, any person authorised by the Principal Registrar in writing in that behalf may require any person to produce his identity card or if the person fails to produce his identity card when required to do so may require him to produce it within such time, to such person and at such place as the person making the requirement may think fit."

Production of proof

Subsection (3) goes further to state that any person purporting to act under the authority of the Principal Registrar should produce proof of such authority if so demanded.

Having said that, however, it is most unlikely that the areas where the police are said to harass young men are always gazetted by the minister and that the police are always under the authority of the Principal Registrar to so demand. In any event, even assuming that they are so authorised, the person to whom a demand is made is given reprieve by the law. He may produce the identity card at a later date and at a defined place and time.

Having noted this, I find absolutely nothing in the Act that expressly makes it criminal failure to carry around one’s Identity Card.