Identity Week 2020- A recap on Kenya's transition to digital ID system and the role of communities

In early 2019, the Kenyan government announced a new digital population register called the National Integrated Identity Management System (NIIMS), which would assign each registered person a unique identification number known as Huduma Namba (“service number” in Swahili). The purported objectives of NIIMS range from improving development planning to enhance service delivery. Kenya is one of many countries looking to digitalize their national ID systems, including the Philippines, Nigeria, and Mexico. Many governments are inspired in part by the Aadhaar program in India, which has scanned the retinas and fingertips of nearly the entire Indian population.

Kenya’s NIIMS, established through a Miscellaneous Amendments Act that made changes to around 60 other laws, is intended to cover all Kenyan citizens and foreign residents in the country. On paper, therefore, the system seems inclusive. Yet when the government rolled out a nationwide mass, registration exercise in April, just weeks after the law came into effect, and identity documentation was a requirement for registration – an ID card for Kenyan adults or a birth certificate for Kenyan children. Kenyans without documents were told to apply for their ID, then come back and register for a Huduma Namba with their document in hand. For some, getting that ID within a few weeks is feasible – but for those facing discrimination like a separate vetting process when applying for documentation like marginalized and minority communities, registration for Huduma Namba was impossible.

By layering the new digital population register on top of a deeply flawed identification system, this transition threatens to exacerbate exclusion – leaving Kenyans without ID cards also unable to register for a Huduma Namba or access services and transactions that are part of daily life. And the government’s goal of establishing NIIMS as a “single source of truth” about all Kenyans is undermined by its very own system of vetting.

In response to the establishment of NIIMS, Nubian Rights Forum filed a case challenging the constitutionality of the new digital system. Their case hinges on four main issues: the use of an amendments bill to make substantive changes to the law, the lack of robust public participation, inadequate data protection safeguards, and – drawing from its experience working with thousands of Kenyans in their attempts to access documentation – the heightened risk of exclusion due to discrimination in the existing identification regime

The Nubian Rights Forum decided after various consultation to be the lead petitioners in this case, since they are the ones that filed before other civil society organizations. The Nubian community had also previously gone to the African Committee on the Rights and Welfare of the Child to sue the government of Kenya on differential treatment on accessing legal identity documents. The Committee found Kenya in violation of its regional human rights obligations due to the discriminatory vetting process this was an opportunity for organizations working on citizenship and Nationality to raise their issues before the country finally transitions to a digital system.

How client & community empowerment connects with systemic change goals

At the first instance the client or the community are informed about the laws, process and documents needed to start your application. The paralegal is the link between the state or institution and the community. Through the process the client makes a realization that they are treated differently, like the process is and dates for application are different from the other Kenyans (First class citizens), later they realize that they have to go through vetting to actually start the application process and their documents are verified to prove they are actually legal. By the time a client or a community member is actually making an application a lot of time has passed by and they tend to miss out on opportunities. like enrolling for tertiary institution, national health cover, job opportunity, access to government youth and women funding and application for another document. Among other many opportunities.

Around 2018 it was evident that if we are to achieve any systemic change then it was high time that communities stop seeing the challenges as individual but rather community issue. In most of community forums held by Nubian Rights Forum we started addressing it as ‘we’ issue in order to bring on board every member from the community. With all our four partners, we are now moving towards a sense of “we” that cuts across communities and regions in the country towards a national movement.

Key moments where we have seen big impacts of our empowerment efforts

Citizen led accountability: Communities affected that have faced discrimination while accessing legal documents, had to come to an understanding through working with paralegals on individual cases. That they are informed with the necessary legal information on the procedures, documents needed and institutions to make applications. This has enabled them to come to an understanding that there is differential treatment in the application system.

In addition to the knowledge provided, it was evident mostly from the Nubian community that they should voice out through social media and radio programs. To highlight issues of discrimination in accessing legal documents and how the system has always been unfair to encourage discourse around nationality and citizenship rights in the country more so now that we are transitioning to the digital ID. In conjunction, other communities were also raising concerns on public participation and data privacy and protection. All this was happening during the case process.

A series of community forums, attending court hearings, and other awareness efforts set the stage for communities to get more involved in shaping the law. This led communities to participate in the public participation on the drafted Huduma Bill legislation and the Data Protection Bill by deciding on their own to draft and submit their own submissions to ensure that the law guiding the NIIMS process was legal and all-inclusive with no discrimination. Many community members spoke at the single public forum held by the government on the Huduma Bill – ensuring that government understood there was a large contingent of the public tracking the process. Our emerging “client ambassadors” also spoke to community elders, media representatives, and at the forum in order to share their own experiences in bringing more allies on board.

Legal empowerment approach realized and by this I mean the approach of know law, use law and shape law. Most of the community members that we walked through the litigation proceedings were either previous clients or community ambassadors, who had enough legal information, the understanding of why litigation was crucial at that moment. They also were keen to be part of the policy process by being present during the public participation to ensure that their views were taken in to consideration. Even if the court would not rule in their favor then they wanted to ensure that they tried all avenues to have a policy solution to their injustices. The case being a public litigation case the members wanted to be present and understand the court proceedings, support their witnesses and listen to response from the government. The mentality of “I will solve it for you” does not apply since after walking with the paralegals in all their application process they got used to the phrase “We walk together to find a solution” hence more reason to be present in court. Before and after each court date, forums and debriefs led by paralegals assisted the community in demystifying the court process and being able to share new insights from their experience in court with others in the community.

There were discussions and awareness creation on social media about what the minority communities and more specifically the Nubian community go through while accessing Identity documents. Enabling other communities from the mainstream tribes to be informed broadly on why the pursuant to have Huduma Namba project halted until past systemic wrongs are addressed. This was evident during the Huduma Namba 2019 public participation where we had individuals from sectors present and vouching for recommendations or amendments to the bill to ensure that data privacy is addressed, public participation and inclusion by leaving no one behind as we transition to digital identity system.

Following the High Court judgement in January 2020, the government released regulations to try to comply with the requirements of the judgement so they could move forward with Huduma Namba implementation. The government hosted around 5 forums in different cities on the regulations – and building on the prior public participation opportunities, more clients and community members turned out to have their say, including in Nairobi, Mombasa, and Garissa. Communities are now primed with the knowledge and confidence to jump into these processes as soon as proposed laws or policies become public – and this is forcing the government to tread more carefully, ensuring more public participation forums, slowing down their implementation, and being on the defensive – at least for now. @zena,@Zahra, @kasida_abdul, @AndrewOchola, @AMOSMWACHI, @namati_citizenship, @exchange_2018kenya & @namati_staff

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What a great journey you have captured here, Aisha. The strides y’all are making in building consciousness (from ‘me’ to ‘we’) and empowerment (from ‘I will solve it for you’ to ‘We walk together to find a solution’) are inspiring. I also like how you noted that most of the folks involved in the litigation and policy process were previous clients and community ambassadors. It shows that investing in education and collaboration with justice seekers is paying off in greater engagement and action. That’s what grassroots leadership looks like. Here’s hoping you and your partners can keep the pressure on the government so they heed your calls for equality.

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Shukran @aishakhagai for this comprehensive summary of our activities around Huduma namba

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This is such a wonderful account of your work and journey. Thank you for making the time to document it and share! Wishing you and the team well on the steps ahead.

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