Roll out of Huduma card is unlawful, judge rules
By Kamau Muthoni
| October 15th 2021
The rollout of the Huduma Namba card has been declared illegal.
This follows a High Court verdict that the government violated the law in processing of personal data.
Justice Jairus Ngaah found that the rollout in November last year went against data protection regulations, thereby rendering the card invalid.
Huduma Namba was rolled out with pomp and colour last year. The first recipients of the new card were President Uhuru Kenyatta and First Lady Margaret Kenyatta.
But blunders by government officials have put the Sh10.6 billion project at risk of going down the drain.
This is the second time the government is on the receiving end over the project.
The National Assembly had enacted the Data Protection Act without consulting the Senate. After senators lodged a legal challenge, a three-judge bench declared 23 of the laws unconstitutional.
Yesterday, Justice Ngaah observed that even if an appeal was lodged, he was not aware of the outcome of that appeal. He 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 of Section 31 of the Data Protection Act, 2019,” the judge ruled.
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 the government. The aggrieved party was Katiba Institute, which is led by legal scholar Yash Pal Ghai.
The grievance was that the government did not provide a guarantee against theft or misuse of citizens’ personal information.
At the same time, Katiba Institute questioned the State’s failure to register Kenyans afresh and to conduct a data protection impact assessment, a requirement provided by the Data Protection Act.
In court, the human rights body argued that the government put the horse before the cart. The government, it said, ought to have enacted a data protection law first, then amend the Registration of Persons Act before rolling out the Huduma Namba exercise.
Justice Ngaah agreed with the petitioner.
Ironically, the government had enacted the Data Protection Act hoping to sanitise the exercise. But the same law came back to bite it, taking the exercise back to square one.
“An order of mandamus (compelling order) is issued to the respondent to conduct a data protection impact assessment in accordance with the Data Protection Act before processing of data and rolling out Huduma cards,” the judge ruled.
In the case, Kassait and Attorney General Kihara Kariuki had mounted objections, arguing that Katiba Institute did not own any data therefore it could not be an aggrieved person.
The Huduma Namba project has faced three challenges since its inception.
The first case was filed by the Nubian community, which challenged the government’s use of the Registration of Persons Act to collect data. It also raised doubts on the security of the National Integrated Informational Management System.
The Nubians also cited lack of public participation, and the collection of DNA and GPRS location data.
The court ruled in favour of the government on the condition that it would enact a data protection law. The State was, however, barred from collecting the DNA and GPRS location data after finding that was intrusive.
Justices Mumbi Ngugi, Pauline Nyamweya, and Weldon Korir ruled there was no guarantee on data protection. They proposed the introduction of an amendment through a miscellaneous amendment Bill but cautioned this would limit public participation.
Meanwhile, the Senate moved to court challenging all laws enacted by the National Assembly without its concurrence. After hearing all arguments, the High Court declared 23 laws illegal, including the one on Huduma Namba.
Justices Ngaah, Anthony Ndung’u and Teresiah Matheka gave the two Houses nine months to regularise the invalidated law but they failed to do so.
However, the Court of Appeal temporarily salvaged the situation eight days to the expiry of the grace period given by the High Court. This is, however, on a temporary basis.
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