Kenya has made great developments in the recognition of intersex persons including enumerating intersex persons in the 2019 census
The Huduma Bill 2021 was introduced to Parliament in December 2021.
It aims to among others provide a primary law on civil registration and legal identification management, establish the National Integrated Identity Management System and assign the Huduma Namba.
The law will repeal all the laws dealing with registration of persons and registration of births and deaths.
Compared to an earlier version of the bill released in 2019, the current proposed law bears some positives such as the recognition of intersex persons.
Kenya has made great developments in the recognition of intersex persons including enumerating intersex persons in the 2019 census.
In 2017, the Attorney General constituted a task force to examine the existing policy, institutional, legislative, medical and administrative structures and systems governing Intersex persons and recommend comprehensive reforms to safeguard their interests.
The proposed amendment by the Huduma Bill to have gender mean male, female and intersex is an attempt to implement the task force’s recommendations. Although positive, both the Huduma Card and Birth Certificate will contain the sex not gender of an individual. This definition should thus be amended from ‘gender’ to ‘sex’.
The bill, however, raises many concerns.
To begin with, the bill allows the electoral commission to use the data under NIIMS to compile, maintain, revise and update the voter register. This means the IEBC may automatically enroll Kenyans above the age of 18 as voters.
Currently, Kenya uses a self-initiated voter registration system, which means voters have to take an active step to register themselves. This makes it easier to conduct an audit of the electoral register as required under Section 8A of the Elections Act, increasing transparency and confidence in the electoral process and may be put at risk if Kenya adopts an automatic registration system.
Secondly, under the bill the Huduma Namba will serve as the KRA Pin and every individual will automatically be enrolled as a taxpayer on attaining the age of 18 years.
Granted, every resident has a responsibility to pay tax, registration comes with constant need to comply with requirements such as filing returns. This means there will be a need for mass sensitisation and education to ensure people are aware of their tax obligations and do not fall into penalties.
The Bill also creates the NIIMS Coordination Committee to ensure the effective coordination and implementation of NIIMS. The Office of the Data Protection Commissioner is not represented in the membership of NIIMS Committee, which is concerning, given the mass collection and processing of data under NIIMS.
Further, the committee is not an oversight institutionand not sufficient to give effect to various rights that individuals have in the Constitution and in this draft bill. Across the world, countries such as India and Nigeria have set up state agencies to handle citizenship and identity matters.
Fourth, the bill also seeks to amend several provisions of the Kenya Citizenship and Immigration Act whose effect is to eliminate the Immigration department and transfer the functions of the director and the Kenyans Citizens and Foreign Nationals Management Service to the Principal Secretary and Cabinet Secretary respectively.
This will reduce efficiency in the functions of these agencies, which transcends simple issuing of passports to include designating points of entry and exit, border management, control and regulation of residency, provision of consular services on diplomatic missions abroad etc.
On issues of inclusivity, the High Court, while determining the petition challenging the implementation of NIIMS in 2019, recognised communities of people at risk of exclusion because they lack documentary proof of identity documents or because of poor biometric data.
These include Kenyans without identification documents, people with biometric challenges (such as unreadable fingerprints), persons with disabilities, street families and street children and stateless persons. The court required the government to develop a comprehensive regulatory framework to address this, yet the proposed bill does not sufficiently address exclusion.
On data protection, the bill allows government agencies such as the NHIF, the NSSF, the NTSA and the Registrar of Marriages to rely on the NIIMS database for authentication.
At the moment, it is not clear which entities will have access to biometric data but even where government agencies use foundational data under NIIMS for authentication, this should not permit them to gain access to biometric data.
Additionally, the bill allows for the Principal Secretary to approve sharing of foundational data under NIIMS to a private entity for verification only.
Nevertheless, this increases the risk of commercial exploitation of data and profiling, raising the need to develop guidelines for sharing of foundational data with private entities in consultation with the office of the Data Protection Commission to ensure effective use of this discretion, fairness and equity to all private entities as well as transparency.
On January 7, 2022, a consortium of civil society organisations presented a joint submission to Parliament raising these issues and urging the government to address the risk of exclusion and governance framework for NIIMS by creating a statutory body.
The consortium also proposed to have the law provide for a multi-year transitional period between the Registration of Persons Act and the Huduma Act that in which the focus is expanding coverage of birth registration and ID card issuance, prior to NIIMS enrollment, will help address challenges of those likely to be excluded from the system.
A transition period would also allow for taking the public through proper civic education and comprehensive training of all government officials in registration and related agencies that would use NIIMS.
Given the extensive nature of NIIMS and that it will impact many areas of lives of all Kenyans, this bill and all related legislation and/or regulations require robust public participation across the country.
Through such engagements, the government can receive and consider the views and suggestions of Kenyans and other residents of the country and incorporate them into the final version(s).
The author is the program Officer Digital at ARTICLE 19 Eastern Africa and a member of the Civil Society Coalition on NIIMS in Kenya
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