A lobby group has asked the High Court to bar the government from launching a new digital identification system citing a waste of public funds.
Operation Linda Jamii in its case filed on Wednesday argues that the system to be introduced by the United Democratic Alliance (UDA) government will in turn render useless, the Sh11 billion Huduma Namba project.
The National Integrated Identification management Systsm (NIIMS) was launched and implemented by the Jubilee administration.
The civil society group’s lawyer Morara Omoke argues that President William Ruto cannot drop the multi-billion project without giving a credible explanation of why millions of cards were issued to Kenyans and the data collected from them are not helpful to the government.
He states that a new system will be an unnecessary load to Kenyans who are struggling with the high cost of living.
“This is an impending burden to the already overburdened taxpayers when their hard-earned money will be used to drive this duplicate project of Huduma Namba,” argues Omoke.
The lobby group has sued Information and Communication Technology, and Interior Security Cabinet Secretaries. At the same time, it has sued Attorney General
Huduma Namba’s life lies in limbo. There are two cases revolving around the project launched by former president Uhuru Kenyatta. The first case was filed by Nubian Community.
At the heart of that case was whether the data collected from millions of Kenyans is secure and free from manipulation by government operatives, whether there was public participation, and if the same was anchored on law or not.
In the case filed by lawyers Yussuf Bashir, Waikwa Wanyoike, Martha Karua, Jackson Awele on behalf of the Nubian community, Kenya National Commission on Human Rights (KNCHR) and Kenya Human Rights Commission (KHRC), the court heard that NIIMS was passed through the backdoor as the public was neither consulted nor involved. Also, no tender was floated to ensure competitiveness.
The State disputed the same, saying the Interior Ministry is just collating information from all other government agencies and storing the same in centralised server.
The information gathered included mobile phone number, personal email, profession, whether one is involved in agriculture, and what acreage of land one has, was to be stored in one server.
“This is a completely harmless exercise. We are consolidating information held by various agencies,” argued State lawyer Njoroge Regeru.
The High Court Judges Justices Mumbi Ngugi, Pauline Nyamweya and Weldon Korir allowed the government to proceed with the exercise but barred it from collecting DNA.
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However, Nubian Community appealed the decision.
In a new twist to the project another judge Jairus Ngaah invalidated the project as National Assembly failed to consult Senate before enacting Data Protection Act.
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 been ultra vires section 31 of the data protection Act 2019,” the judge ruled.
Data protection commissioner Immaculate Kassait was appointed on November 16 2020 to head the new office. Two days later, a case landed in her desk over the data collected by the government, the aggrieved being legal scholar Yash Pal Ghai and Katiba Institute.
Their grievance was that the government did not provide a guarantee against theft or misuse of Kenyans’ personal information.
At the same time, they questioned its failure to register Kenyans afresh and to conduct data protection impact assessment (DPIA), a requirement provided the data protection Act.
In court, they argued that the government put the horse before the cart. According to Katiba, the government ought to have enacted data protection law first, then amend the Registration of Persons Act before rolling out the Huduma Namba exercise.
Justice Ngaah agreed with the human rights lobby.
In an ironic situation, the government enacted Data Protection Act in hope to sanitize the exercise that gobbled Sh10.6 billion. The judge was of the view that if the State was serious in protecting Kenyan’s data, it would have also done data protection assessment before rolling out the cards.
He ordered, “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.”
Since its inception, Huduma Namba faced three onslaughts. The first case was filed by Nubian Community, which challenged the government’s use of the Registration of Persons Act to collect data. It also raised doubts on how secure National Integrated Informational Management System (NIIMS) is.
Nubians also contested lack of public participation and collection of DNA and GPRS location. The court cleared the government on the condition that it would enact a data protection law. It however barred it from collecting DNA and GPRS location after finding that was too intrusive.