On Mashujaa Day, Interior Cabinet Secretary Fred Matiang'i handed the president his Huduma card and announced that the process of integrating personal data for Huduma Namba was complete. Soon after, the CS officially launched the distribution of Huduma cards.
These incidents attracted a lot of public attention. However, they were both in violation of the rulings of the High Court. In cases 56, 58 and 59 of 2019, the court halted implementation of the National Integrated Identity Management System and any processing of the data collected during the Huduma Namba registration process until a comprehensive framework was put in place to regulate key issues of privacy and exclusion.
The government would argue that it met the court’s requirement by publishing on October 13 rules for the Registration of Persons Act (National Integrated Identity Management System) as well as regulations on Data Protection (Civil Registration).
However, these regulations do not address two key court requirements, including how Kenyans without existing documentation can enroll. Thus, we are forced to ask: Why have a Judiciary if we do not respect its decisions?
It is worth examining the deep flaws in the current identity system to get a sense of the challenges of implementing the Huduma system. Of note, no one is allowed to enroll in the new regime if they do not already exist in the current one.
A typical example is Mariam, born to Kenyan parents in Nairobi. At the age of 34, the mother of two still has no ID card despite her relentless effort to get it. Mariam belongs to the Kenyan Nubian community which traces its roots to the Nubian mountains in Sudan. Their ancestors came to Kenya with the British colonial army in the early 20th century.
Unlike other Kenyans, Nubians start the ID application process only two days in a week when community elders determine if the applicant in question is indeed a Nubian. If approved, the applicant then undergoes the national vetting process, which can drag on for a year or more. Then the application finally goes to the registrar, where processing time ranges from six months to 'infinity'.
The additional challenge facing Nubians is a key concern that the Nubian Rights Forum (NRF) raised in petition No 56 of 2019, which cited the fact that registration officers have the authority to demand additional documentation from persons from marginalised communities.
This discrimination is not unique to the Nubians. Kenyan Somalis, coastal communities and even some individuals from mainstream tribes with Arabic-sounding names are also subject to similar exclusionary practices. This makes up a significant percentage of the population.
Human rights organisations like NRF have been pushing for the current challenges to be addressed before another layer is added that would further marginalise these groups and increase obstacles to their ability to access healthcare and education, among others.
We cannot transition to a new system until we have addressed the issues in the identity regime. Among other things, that means finding a way to ensure that all those who have been struggling to get ID cards are able to enroll under the new system.
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Identity systems are anchored in people’s trust. The onus is on the State to build and safeguard the principles of inclusion and privacy, which are enshrined in our constitution. But without a proper regulatory framework, thousands of marginalised Kenyans will not be able to trust the same system that has for long excluded them. Trust is not easily earned by officials who have a good track record of defying court orders.
All steps taken to implement Huduma Namba are illegal until the court orders are obeyed and a full legislative process is taken to develop a comprehensive law that governs the process and addresses the issues of exclusion and privacy. Until that has been completed, the government should suspend issuance of Huduma cards.
We cannot proceed until we have a comprehensive and inclusive policy regulating the Huduma process that respects the constitutional principles of inclusion, equality and privacy. As a Kenyan, I am hopeful that the government will respect the orders of the High Court and do what is right. By taking the proper steps, we can build a system that unites all Kenyans, regardless of their social status, ethnicity, religion, political affiliation or gender.
Mr Mustafa is the Senior Programme and Advocacy Officer for Namati’s Citizenship Programme.