On 30 January 2020, the High Court of Kenya – the first level of the country’s superior courts, whose decisions can be appealed to the Court of Appeal and Supreme Court – handed down its judgment in the case of Nubian Rights Forum and Others v Attorney General. The case concerned a challenge to the constitutionality of the government’s National Integrated Identity Management System (NIIMS), a biometric ID scheme also known as ‘Huduma Namba’. The Court determined that the implementation of NIIMS should be halted until the enactment of an adequate legislative and regulatory framework governing its use.
Introduced in January 2019, the NIIMS scheme involves the creation of a national database through collection of personal and biometric data, from which unique ID numbers and ID cards will issued. These will be required to access a range of government services, including education, housing and healthcare. The scheme applies to all Kenyan citizens aged 6 and above, including those living abroad, as well as to refugees and foreign nationals resident in the country.
The case was initiated in February 2019, and in April 2019, the High Court issued an interim ruling, pending a full hearing. The ruling permitted the government to proceed with data collection, but imposed several conditions, including that registration could not be mandatory. During April and May 2019, authorities undertook a mass registration drive, and there are now reportedly almost 40 million people registered on the database.
Petitions brought by three civil society organisations – the Nubian Rights Forum, the Kenya Commission on Human Rights and the Kenya National Commission on Human Rights – were consolidated and heard together in September 2019. The Court identified three substantive issues for determination: firstly, whether the legislative process for NIIMS had been constitutional; secondly, whether the legislation violated the right to privacy under Article 31 of the Kenyan Constitution (KC); and thirdly, whether it violated the right to equality and non-discrimination under Article 27 KC.
The first issue, of the legislative process for NIIMS, concerned the extent of public participation, the use of an ‘omnibus Bill’ procedure to pass the legislation through Parliament, and the lack of involvement of the country’s Senate. On all three points, the Court found that the process had not been unconstitutional, although it acknowledged that the process “appeared to have been rushed.”
For the second issue relating to Article 31 KC, the Court gave consideration to a variety of potential privacy implications, including the risks associated with the use of biometric data. It concluded, inter alia, that “biometric and personal data in NIIMS should only be processed if there is an appropriate legal framework in which sufficient safeguards are built in to protect fundamental rights.” The Court expressed concern over provisions enabling the collection of DNA and GPS coordinates of individuals’ homes, which were described as “intrusive and unnecessary”, and these specific elements of the legislation were found to violate Article 31 KC.
The third issue, of the right to equality and non-discrimination under Article 27 KC, centred on claims of discrimination against the Nubian community and other marginalised communities, who face barriers in accessing the national identity documentsrequired for NIIMS registration, and on the risk of exclusion from access to government services. It was held that there had been no violation of Article 27 KC against these communities, and that while there was a possibility of exclusion, this was not itself a reason to find NIIMS unconstitutional.
The result of the judgment is that the government may continue with the implementation of NIIMS, but only once “an appropriate and comprehensive regulatory framework” is enacted – one which addresses the various shortcomings which the Court identified in relation to privacy and the risk of exclusion. The Nubian Rights Forum has however filed an appeal, along with an urgent application for stay of the implementation of NIIMS.
The legal proceedings are therefore expected to continue, but the case has already significantly shaped the rollout of the NIIMS scheme. That there will now be a regulatory framework in place is to the credit of the civil society organisations involved in this challenge. The case has also drawn international media attention, and with other countries reportedly planning to adopt similar IDsystems, it is likely to inform the development of debates elsewhere, as well as the strategies of those undertaking litigation in this area.