RIA is working with 10 African partners evaluating the rollout of digital ID systems in their respective countries under the auspices of our BIO-ID project. Our country partners are summarising their findings in blogs, and in this installation Grace Mutung’u advocate of the High Court of Kenya and research fellow with the Centre for Intellectual Property and Information Technology Law (CIPIT) at Strathmore University, argues that the Kenyan government should shift from its reliance on quantitative data towards a more holistic and human rights paradigm to improve the country’s digital ID system.
I recently encountered a young man who was travelling to Nyeri, a town that is about 200km from Nairobi. When I asked him what business he had in that town, he explained that he was going to have his fingerprints taken for a police clearance certificate, popularly known as ‘good conduct’. The certificate was a prerequisite for a job he was applying for. Although his usual residence is in Machakos county, about 40km from the city centre, he opted to travel to Nyeri as it was the nearest place, he could get his fingerprints taken within the next week.
As we chatted, he explained the new process for application for a ‘good conduct’, lauding the e-governance system that allows a person to apply for the document from their phone or neighbourhood cybercafe. Nevertheless, the process is not fully online. One must physically visit a designated police office to have their fingerprints taken. For the young man, an appointment for taking his fingerprints at the nearest office would take at least 45 days. He therefore selected to have them taken at Nyeri, the nearest office with an open slot on the following day.
The story of the young man is an illustration of the identification ecosystem in Kenya. On one hand, the country is in a race to becoming a digital economy powerhouse. Reports such as the World Bank’s digital economy assessment rate the country fairly in areas such as digital infrastructure, skills, platforms, entrepreneurship, and financial services. A key component of digital platforms is the ability for people to identify themselves online.
On the other hand, the digital economy is founded on policies that are not sensitive to the history of the country. For example, the digital ID legal framework was created by simply inserting three clauses to a pre-independence identification law, the Registration of Persons Act (RPA). The RPA was enacted at a time when the government was imagined as a tool for policing Kenyan people and not serving them. The law therefore makes it the burden of the citizen to present themselves for registration, at the risk of criminal sanctions. Issues such as proximity or access to government offices are not prioritised. To the contrary, amendments to the RPA over its long existence have focussed on strengthening the powers of the national registration bureau. Presently, the bureau can arrest people found with registration-related offences, determine who gets national identification cards, and revoke existing national identification cards. It is therefore not surprising that an amendment to the RPA to create a digital ID system was the subject of recent litigation.
The narrative on the new digital ID system, however, frames the new card as a new era in government service delivery. Dubbed huduma namba, it promises to provide a trusted way for people to identify themselves online. Going by the story of the young man, however, the insistence on authentication of people as opposed to verification of people’s documents demonstrates that as far as government services are concerned, people still have to physically present themselves for biometric authentication. This therefore leads to questions on the effect of the digital identification law. Does it really change government service delivery or would a new law, based on a different paradigm, be required?
Travelling in search of government certificates is a familiar practice in Kenya. In 2019, when the government announced a deadline for acquiring the new digital passport, people who were able to, travelled to centres outside of the capital Nairobi, in hope of avoiding long queues witnessed there. Similar to the ‘good conduct’ certificate, the passport application is made online, but one has to physically present themselves to an immigration office for biometric capture. Again, during the mass registration exercise for new digital ID programme huduma namba, people moved around looking for stations where they could be enrolled within the shortest possible time. For many, registering for the new card became urgent especially after the government announced that it would be impossible to get either government or private services (e.g., a SIM card) without a huduma namba.
In May 2019, the government reported that it had collected data from about 36 million people, more than half of the total population.
These numbers however camouflage the real issues with digital identity systems. For example, as much as problems of lack of identity affect, going by the numbers, a minority of the population, many of the people lacking identification documentation are more likely to come from communities that are already marginalised. These include communities found along the borders as well as African immigrants from the period before and after independence.
Apart from minority communities, low income earners also have different experiences with both government and private identification systems such as mobile phone numbers. For example, after the printing of huduma cards from late 2020, the government indicated that only about 300,000 out of over 2.2 million people had responded to texts about their cards. The government has now embarked on tracing people to their rural homes. In one county, 51,000 cards remained uncollected. Government officers suspect that many youth were not reached because they changed their SIM cards after using them to take mobile loans.
The numbers also do not give a full picture of how people access government services. The country has a rural-urban divide and even in urban areas, it is typical for people to spend up to a whole day in pursuit of services such as replacement of lost identification documentation. The issues still persist even after the government introduced integrated government service centres.
Human rights-based digital ID
One way to resolve issues arising from Kenya’s digital economy would be to shift the paradigm from the narrow focus on numbers, to more holistic development that incorporates human and people’s rights.
Unlike the current emphasis on registration of people who already have identification documentation, such a system would prioritise those who lack documentation and guarantee their inclusion in the new economy. In addition to inclusion, the system should protect people from harm arising from the use of their identity data. These harms range from missing out on government services as a result of not being identified, being misidentified or wrongly counted and therefore getting the wrong service, and lack of agency, among others. Like previous economic strategies, digital ID’s and the broader digital economy risk perpetuating current digital and economic gaps if they do not deliberately prioritise the marginalised and vulnerable.
Poor and marginalised people make up the largest percentage of people without official identity. Due to existing digital and structural inequalities these groups are at risk of further discrimination and socio-economic exclusion depending on how Digital ID systems are developed. If not carefully evaluated, the digitalisation of ID systems may also subject citizens to state surveillance. As a result, there is a growing and urgent need to examine the impact of Digital ID systems on human rights in Africa and use these findings to develop evaluation frameworks that ensure compliance with international rights and data protection norms. To support this need Research ICT Africa’s BIO–ID project deploys a legal Evaluation Framework for Digital Identities developed by the Centre for Internet and Society (CIS). This framework was previously used to evaluate the Indian government’s mandatory biometric ID project that was found to have violated citizens’ human rights by denying them access to essential services and benefits. The African evaluation project brings together partners from 10 African countries, including Ghana, Kenya, Lesotho, Mozambique, Nigeria, Rwanda, South Africa, Uganda, Tanzania and Zimbabwe.
In addition to the blogs being produced by our country partners to introduce you to the issues that they’re uncovering in this important new research area, RIA’s Kristophina Shilongo is interviewing partners to delve deeper into the socio-economic challenges ushered in by the rollout of digital ID systems in Africa. Read her interview with Grace Mutung’u of Kenya below.
Politicisation could present harms for vulnerable groups in Kenya’s national digital ID system
In the fifth of the series of interviews with our partners participating in RIA’s BIO-ID project, Kristophina Shilongo interviews Grace Mutung’u advocate of the High Court of Kenya and research fellow with the Centre for Intellectual Property and Information Technology Law (CIPIT) at Strathmore University, argues that the politicisation of nation building could present harms for vulnerable groups in Kenya’s national ID system.
KS: We’ve seen a lot of interest in digital ID on the continent from a diversity of donor agencies, financial institutions, and governments. Why do you think this is the case?
GM: The trend towards digital ID in Africa is driven by many ideas that range from developments in the international development space to local cultures such as innovation in fintech. The international development community has been pushing for digital ID with various reasons. Humanitarian agencies see digital ID as a way of managing service provision and eliminating frauds such as people receiving double rations of food aid. They also use digital ID that is easily shareable in managing migration in instances where persons have to relocate to other countries. This has inspired migration agencies and governments who are increasingly using biometrics in migration.
Development agencies are experimenting with cash transfers to victims as opposed to giving them food aid. Such schemes require versions of digital IDs like mobile phones, or accounts with financial institutions. Financial institutions are also pushing for credit information sharing as they move from traditional methods of lending to data driven services. Digital ID is already used for mobile money services and digital lending and the Kenyan government has facilitated several credit reference bureaus, which depend on the digital ID to identify users of financial systems.
For Kenyans who have had the national ID for the past century, the interest in digital ID is fascinating, since the national ID already serves many of these functions. The government states that they need to digitalise the national ID and also add biometric identification to create a centralised repository of identity information of all persons in Kenya. This, they argue, will be convenient as people will no longer have to carry many identity documents such as driving licences, national health insurance card, social security card etc. But it is not only the government that is interested in digital ID, private companies, particularly the fintech community and other innovators view digital ID as key for a data enabled economy. Following the COVID-19 pandemic, ICT was identified as an industry that could specially assist in the response. A COVID-19 ICT advisory taskforce was created, and they received a lot of interest from ICT start-ups that had the capacity to create pandemic response products. Some of the products, such as contact tracing apps, vaccination management and certification system depend on digital ID to identify users.
KS: If policymakers in Kenya can take away one lesson from your case study, what do you hope it will be?
GM: Kenya has had an identity system for over 100 years, yet getting identity documents is not guaranteed for all. Any new identity system should first resolve long standing problems for those who have difficulties accessing the document and prioritise those without any identity documentation.
Since we have experience with security agencies using national ID to deny people freedom of movement, arrest them and threaten them, the new ID system ought to be conceptualised from a different paradigm. Can ID be a means of counting people and delivering services to them and not harassing them? Can we imagine a system where a person found without an ID would be referred to the ID service instead of being arrested? Where government would count the number of children without birth certificates and come to issue to documents at their school instead of locking the undocumented children from attending school?
KS: What research still needs to be done to support the future development of digital IDs that support, not hinder, socio-digital equality on the continent?
GM: The current digital ID systems are based on a certain Western conception of the world, where a person gets their identity from their biological heritage, which is then recorded by the government. They ignore fluidity of identity and the role of the community in identity formation. What role do other systems of identification play in digital ID systems?
Making digital ID mandatory for access to government services is likely to create other ways of accessing government and private services for those in need of the services, but lacking the necessary documents to register for digital ID. Research on digital ID should turn to lived experiences of persons marginalised by digital ID to learn how digital ID can best serve people.
KS: What are your biggest hopes for the future of digital ID’s in Kenya?
GM: That the ID system will resolve unmet claims of citizenship. Kenya’s national identity card is a citizenship document, and there are communities who face difficulties accessing the national ID card, and consequently, miss out on other rights. An ideal identity system would be one where every child is guaranteed of getting an identity document when they need it, regardless of the community they come from.
Other hopes revolve around use of the population register to expand service provision to those who need it most. People also hope that use of digital systems in government could help fight corruption or at least expose corruption, and mismanagement of funds, as people believe that there are enough resources to afford every person a decent life, just that the resources are concentrated in the hands of a few.
KS: What are your biggest fears for the future of digital ID’s in Kenya?
GM: From the experience of the national identity card, politicisation of nation building, where some communities and genders are prioritised and others disadvantaged is a real concern. That women and some communities still face difficulties in accessing identity documentation, despite the existing bureaucracy, points to a lack of political will to resolve outstanding issues of citizenship.
We have previously witnessed politicisation of processes such as the census and subsequent revenue sharing. This, if not resolved can lead to fractures in cosmopolitan areas, if for example people perceive that some communities get better share of national resources due to their numbers or representation in national policy making processes.
There are also fears that getting identity documentation is only the first step towards a good quality of life. People fear that without good governance, their identity documents will not give them access to opportunities whether in education, good employment, or policy making. This may be made worse by digital ID, which may make access to government services more remote in the sense that one can access the services without having to meet the government officers to explain any unique issues they may be facing.
There are also fears about the linkage of digital ID with national security. Currently, people already have concerns with fingerprinting practices, where arrested persons fingerprints are put in a database managed by law enforcement. For many job applications, some visa applications, applications for certain driving licences, one is required to get a certificate of good conduct. The certificate is issued by law enforcement by running the applicant’s fingerprints against the criminal database. This practice has created power within law enforcement to determine the suitability of people for access to opportunities. People fear that such power could be further enhanced if law enforcement or other security organs have access to sophisticated systems such as the centralised digital ID system. A 2018 petition instituted by KELIN-a HIV/AIDs advocacy group illustrates these concerns. The group feared that collection of biometric data on HIV patients on a government treatment programme could expose them to criminalisation of their medical data, since the collection was to be done by national government administrators.
Without patiently explaining to Kenyans the nature, rationale, benefits and potential risks of the new system, people will enrol out of fear of missing out on government services.