“The main question was how we would harness each other’s strengths to work together. All the parties on board individually identified what their strengths were and what resources they could provide.” — Wakesho Kililo

Background

In January 2020, Kenya’s High Court became one of the first Constitutional Courts in the world to halt the implementation of an all-purpose government digital biometric ID, the National Integrated Identity Management System (“NIIMS”), also known as Huduma Namba. This was the result of a petition filed by three civil society organisations in collaboration with seven other interested parties who challenged the amendments introducing the NIIMS on multiple grounds, including that it violated Kenyan citizens’ right to privacy and right to equality. In its judgment, the Court removed DNA and GPS data from the legal definition of ‘biometrics’ to ensure that the government didn’t collect such data without a specific legal basis. Further, even though the Court upheld the validity of the NIIMS, its implementation in Kenya was made conditional upon the enactment of a robust data protection law with adequate safeguards. The Court also found the need for a clear regulatory framework that addressed  the possibility of exclusion of certain persons from accessing welfare benefits. However, it did not find such possibility of exclusion  in itself a sufficient ground for finding the NIIMS unconstitutional.

The High Court is a first instance court in Kenya, and at the time of publication of this case study, this January 30, 2020 judgment was under appeal.

Facts

In November 2018, the National Assembly in Kenya enacted amendments to the Registration of Persons Act (“The Act”) through the Statute Law (Miscellaneous Amendments) Act, 2018 (“The Amendment Act”). The Amendment Act introduced the NIIMS through section 9A of the Act, which was intended to provide the foundation for a digital population register that would serve as a single point of citizen and resident identification for the government.

To create the NIIMS database, a 30-day nationwide biometric registration drive was carried out where citizens and foreign residents of Kenya were directed to provide sensitive personal information, purportedly to establish, verify and authenticate their identity. Subsequently, they would be allocated a unique identity number, known as Huduma Namba (Swahili for ‘service number’). The requisite personal biometric information included facial images and fingerprints of all ten fingers. Even though  the Amendment Act provided for collection of voice waves, DNA and GPS data as well, they were not collected at this time.

Within four months, government reports have claimed that over 31 million people registered for a Huduma Namba. The government sensitization campaign focused on a fear-inducing message that highlighted the consequences of non-registration, including losing access to key services such as banking, education and healthcare, among others.

Three human rights organisations, the Nubian Rights Forum (“NRF”), Kenya National Commission on Human Rights (“KNCHR”) and Kenya Human Rights Commission (“KHRC”),  determined that the NIIMS scheme in its present form posed a grave threat to human rights. They filed independent petitions in the Kenyan High Court challenging the constitutionality of the NIIMS. Later, the petitions were joined and heard together by the Court. The Law Society of Kenya, InformAction, HakiCentre, Muslims for Human Rights, Article 19 —East Africa and Inuka Trust also joined the petition as interested parties and made arguments alongside the petitioners.

In April 2019, the Court issued an important interim ruling posing important restrictions on the government’s Huduma Namba enrolment campaign. It stated that, until the final verdict in the case had been handed down,  enrolment would not be made mandatory, DNA and GPS data would not be collected, and the Huduma Namba would not be linked with any public services or shared with third parties.

As a consequence of the petition and public debate, the government was pressured into releasing, in July 2019, the Huduma Namba Bill (“The Bill”), a substantive bill containing detailed procedures for establishing and operating the NIIMS. The Bill, which at the time of writing has not yet been introduced in the Parliament, intended to replace the single provision in the Amendment Act that had been used as a basis for the NIIMS database creation. The Bill has been widely criticised by civil society organisations for severely limiting the right to privacy.

The Court identified three common threads between the petitions. First, the implementation of the NIIMS violated citizens’ right to privacy because the information collected was disproportionate to the purpose served. This applied even more so since a clear data protection framework did not exist in Kenya. Second, similar to the Indian Aadhar scheme, the implementation of the NIIMS would lead to both specific human rights violations such as discrimination against the Nubian community, and exclusion due to poor or missing biometric data. The petitioners highlighted that the Nubian community, which had experienced a history of statelessness, underrepresentation and deprivation of fundamental freedoms in Kenya, was most at risk for discrimination-based exclusion. . Third, there were procedural irregularities in establishing Huduma Namba through the adoption of a miscellaneous Amendment Act and giving a mere seven days for public participation on the law.

The judgment was due on December 18, 2019. However, in November 2019, the government enacted Kenya’s first Data Protection law. In light of this, the Court sought written comments from both sides addressing how the newly enacted data protection law would impact their case and deferred its judgment to January 30, 2020.

Outcome

In its judgment of January 30, 2020, the High Court reaffirmed the constitutionality of the NIIMS and upheld the procedural legality of establishing it through the Amendment Act. Despite this, the verdict saw some remarkable victories for digital rights in Kenya. First, the Court reiterated and reaffirmed the importance of a robust data protection framework by halting the enrolment process of the NIIMS until adequate data protection legislation was put in place (para 1035). Second, the collection of DNA and GPS data was held to be unjustifiable and intrusive, especially without specific legislation detailing appropriate safeguards for their collection (para 1039). 

A missed opportunity in the judgement was the Court’s lack of adequate engagement on the issues of exclusion and discrimination, in particular the failure to consider and apply the Kenyan Constitution’s safeguards against indirect and historical discrimination. Even though it clarified that there was a need for a robust regulatory framework addressing the possibility of exclusion in the NIIMS, it did not find that in itself a sufficient reason for finding the NIIMS unconstitutional (para 1045).

In February 2020, the Nubian Rights Forum filed an appeal in the Court of Appeal on the basis of four main issues. First, the appeal pleaded for reconsideration of the issue of discrimination against the Nubian Community. Second, it requested a reconsideration of the Court’s abstention from making determinations on the privacy framework and technical design of the NIIMS. Third, the appeal urged the Court to reconsider the procedural irregularities in enacting the amendments, and lastly, it applied for a stay on the implementation of any aspect of the Huduma Namba until the government complied with the data protection framework requirements laid out by the High Court.

Collaboration

This case exemplified how robust partnerships between civil society organisations and public engagement can catalyse policymaking. As Shafi Ali, the Chief Executive Officer of Nubian Rights Forum noted, “The petition pressured the government into releasing a substantive law on Huduma Namba and also to enact a data protection law in Kenya, a cause that was being pursued for over ten years in Kenya.”

The urgency in collaborating and filing the petitions as soon as possible arose since the government was rolling out a pilot for the NIIMS almost immediately after the Amendment Bill passed, and Kibera, home to many Nubians, was selected as one of the pilot sites. Laura Bingham, Senior Managing Legal Officer for Equality and Inclusion at Open Society Justice Initiative, who contributed to the legal and strategic aspects of the case as part of the NRF legal team, stated the importance of trust in collaboration. She said, “In February 2019, we held several coalition meetings to strategize and discuss legal claims, and in the evenings, we structured, drafted and refined the petitions.” She added, “We had the petitions in place within 36 hours. A key element that made this possible was the pre-existing relationship of collaboration and trust between the organisations.”

After filing the petitions, each of the three petitioners focused on leveraging their respective strengths in taking the case forward. NRF worked on local community mobilization to raise awareness about the systemic discrimination against the Nubian community on issues of citizenship and their ability to receive their Huduma Namba. KHRC capitalized on its strength in human rights advocacy and engaged in national community mobilization through social media campaigns and nation-wide WhatsApp groups. The third petitioner, KNCHR, was able to formally engage with the government on the issues of inclusivity and data privacy.

As the campaign evolved, many other civil society organisations came on board. With more and more organisations and parties showing interest in the case, the need arose to assign roles more clearly. The parties held a strategy meeting in July 2019, where they divided themselves into three teams for better coordination and accountability. These were the media and communications team, the parliamentary engagement team, and the legal team.

The media and communication team was extremely active and constantly mapped strategies to engage more citizens. “Ever since we started the case against Huduma Namba, we have been facing a national media blackout. This is because many of the large media houses in Kenya are controlled by the same individuals that are pushing the agenda of Huduma Namba. Hence, we were relying on meeting the community members in-person to sensitize them about the issues with Huduma Namba,” said Yasah Kimei, project administrator for NRF. For this reason, every civil society organisation involved in this case hosted community forums to engage the public. Yussuf Bashir, Director at the Haki na Sheria Initiative and lead counsel for NRF recalled, “We held community forums in particularly marginalised areas to sensitize the communities that were being discriminated against.” NRF also spoke on local and community radios to reach the Nubian community. The media and communications team also created talking points so that anybody speaking with international journalists could do so with a common voice. They also ran an informative Twitter campaign that was promoted by the other stakeholders.

The team also took steps to continue community engagement throughout the hearing of the petitions. The petitioners live-streamed the proceedings, media houses were invited to the Court, and, each day of the trial, different members of the Nubian community occupied the last bench of the courtroom, to emphasise through a visual statement that Nubians were equal citizens of Kenya.

At the same time, the parliamentary engagement team pushed their cause to have a more secure and inclusive identification system discussed by the Parliament in its statelessness caucus. The team reached out to Members of Parliament who were amenable to the campaign and urged them to raise these issues in the caucus. Lawyer’s Hub, an organisation in Kenya promoting access to justice through innovation and technology, hosted a policymaking hackathon on the Huduma Namba Bill. “The aim behind this was to come up with a model bill that could be presented to the government for further parliamentary engagement,” said Wakesho Kililo, a legal consultant working with Lawyer’s Hub on this case.

However, this form of advocacy wasn’t able to provide much relief. Ali partly attributes this to the opaque functioning of the government. He admits, “There was a caucus where we sat with the Cabinet Secretary for Interior. He engaged with us and promised to solve the issues of discrimination in the NIIMS within three months. That was August 2019 and, even today, nothing has come of it.” In saying so, he emphasised the importance of working in a coalition to diversify tactics and approaches. Through their strength in numbers, different approaches to public engagement and advocacy could be adopted to obtain the campaign’s result.

Finally, the legal team represented the petitioners in Court. They were in charge of courtroom proceedings, including drafting and reviewing legal documents, presenting oral pleadings and conducting examinations and cross-examinations. Since this case presented many arguments regarding the technical shortfalls of the NIIMS, the legal team was also constantly engaging with technical experts including Anand Venkatanarayanan, a cyber security expert, and Dr Tom Fisher, Senior Research Officer at Privacy International. Both worked pro bono for the Huduma Namba campaign as expert witnesses. The lawyers would have virtual meetings with Venkatanarayanan at the end of each day when the respondent’s experts were presenting evidence. They would brief Venkatanarayanan about the technical aspects that would be presented the next day and discuss the respondent’s technical experts’ testimonies to determine the line of cross-examination. These meetings between the lawyers and technical experts had become common practice in the five months leading up to the trial.

Waikwa Wanyoike, co-counsel for NRF, emphasised the importance of choosing the right technical experts. He noted that the ideal technology expert is not just an expert in his field, but is also involved in the human rights issues that the technology presents. Wanyoike also emphasised that it is important for lawyers to understand the relevant technical aspects of the case. He stated, “It is a critical skill to be able to listen to the technical aspects of the case that the experts present. Once you do that, then you identify the pieces of tech that are critical to proving the legal theory you have developed.”

“It can’t be a process where lawyers bring the arrogance of knowing, that won’t work. As a starting point, lawyers have to accept that they are students. And then at some point, they may take over and direct the process,” said Wanyoike.

To help lawyers embrace the tech, Venkatanarayanan noted the importance of letting go of technical precision in favour of broader principles that lawyers need to understand. He stated that, “Lawyers gun for constitutional glory and sometimes disregard how it is the technology that has made most of their concerns relevant. For instance, it is impossible to fix a leaking pipe by passing a law that says that no pipe should leak. Hence, it is important to keep telling them to not hesitate when arguing the technology arguments.”

It is important to note that not all organisations and individuals that collaborated were a part of the case on record. The work of Namati, a legal empowerment NGO, is a prime example of such a silent but strong partnership. They assisted by identifying organisations whose collaboration would help the case and with the development of the campaign by setting up conferences for the stakeholders to come together and strategize. Additionally, there were many individual consultants, paralegals and organisations that participated in the campaign and contributed their knowledge to sensitize the community about the risks of Huduma Namba. Hence, the halting of the NIIMS was a result of civil society coming together for a cause that was much larger than them – ensuring the inclusivity and data security of Kenyans.

Lessons Learned

This campaign and its partially favourable outcome were made possible because of many stakeholders, small and big, working together and capitalizing on each other’s strengths. As Kililo mentioned, “Almost as soon as the case was filed, it started generating interest with many organisations coming in asking, ‘How can we help?’.”

The campaign took advantage of the strengths of all the parties involved. For instance, since InformAction’s strong suit is video advocacy, they carried out video interviews of lawyers, technologists and people of the Nubian community to highlight the plight of stateless persons and how they would be affected by Huduma Namba. As Kimei pointed out, “It was not always easy because we were all different institutions with different strategies and plans. However, we put aside all our differences and only focused on strategizing in this case.”

For NRF, the most empowering aspect was how much the Nubian community appreciated being the face of a case that had such national focus. All Kenyans could connect to the case, but the marginalised Nubians were the agents of the campaign.

A significant lesson learned from this campaign was the importance of coordination between strategic cases that were running in parallel and making related legal claims and arguments. While theNRF case was ongoing, there was a parallel petition filed by Okiya Okoiti and others questioning the procedural legality of the entire Miscellaneous Amendment Act. This case was later dismissed on account of the court holding that all questions had been addressed in the present case. Ochiel Dudley, counsel in the parallel petition, noted that, “The parties from the two cases didn’t sit down together to strategize how to understand each other’s theory of the case, strategize and ensure coherence between their different arguments in both petitions. Having the same argument in both cases possibly gave the Court an easy way out because it did not discuss the procedural issues in the second petition in detail and automatically dismissed the second petition once the first petition was decided.” Having learned from this experience, the petitioners in the two cases are now jointly discussing the strategy for appeal.

Overall, this case has laid the groundwork for bringing many more similar claims to Court in the future. In doing so, not only has it reaffirmed some long-standing partnerships between organisations, but it has also created a new network of people and organisations who can collaborate on various other human rights issues.

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