Kenya’s High Court Delays National Biometric ID Program

NAIROBI, Kenya — Kenya’s high court on Thursday temporarily suspended the country’s new national biometric identity program until the government enacts laws to protect the security of the data and prevent discrimination against minorities.

The government had said the IDs would be required for all Kenyan citizens and foreign residents to access a broad range of rights and services, including health care, education, public housing, voting, marriage licenses and registering mobile phones.

But the court’s three-judge panel announced in proceedings on Thursday that it is suspending the digital ID program until the government has in place “an appropriate and comprehensive regulatory framework” that would protect the personal data it collects and safeguard minorities from discrimination. The panel’s 500-page judgment is expected to be released next week.

The decision is a setback for the government, which had already collected data from nearly 40 million Kenyans during a mass registration in April and May last year. The government will now have to pass new legislation — under public scrutiny — to build in protections and implement the biometric program. It is unclear how long that might take.

The program, called the National Integrated Management System, was introduced last year and sought to collect personal and biometric data — including fingerprints, facial photographs and residential addresses — from Kenya’s population of almost 50 million.

But last February, civil rights groups in Kenya challenged the system’s constitutionality, citing concerns over data privacy, inadequate public participation, and the marginalization of minorities, who already find it difficult to get the government documentation they need to register for the biometric IDs.

“We are hopeful that this judgment is a milestone in the quest for equality for all Kenyans,” said Yussuf Bashir, a lawyer representing the Nubian Rights Forum, the first of many civil rights organizations that filed legal challenges to the digital registry.

Kenya’s digital registry drew comparisons to India’s giant biometric program, known as Aadhaar, whose sweeping powers were limited by the Indian Supreme Court in 2018.

Each person who registers is supposed to receive a unique identification number called Huduma Namba — or “service number” in Swahili. Officials said the number will be required to pay taxes, open bank accounts and get a drivers’ license, in addition to accessing health and schooling services.

Civil rights groups, however, said the program risked disenfranchising millions of people who already face systemic challenges getting the documents required to obtain biometric ID cards. To enroll, adults had to provide a national identity card, and birth certificates for those under 18.

For decades, racial, religious and ethnic minority groups like Nubians, Somalis and Kenyans of Indian origin have faced obstacles and delays when applying for government-issued papers. (Nubians were originally brought to Kenya from Sudan as soldiers by British colonial rulers more than a century ago.) Human rights advocates said many members of these communities were turned away from Huduma registration centers last spring.

The court, however, found that the government took the right steps to introduce the sweeping program, provided the public enough information, and did not coerce people to register.

Still, the program “was rushed” and introduced without proper legislation, said Justice Pauline Nyamweya, one of the judges on the panel.

The legislation was not published until July, after the mass registration exercise had ended — a move that Justice Nyamweya said was “contrary to principles of democratic governance and rule of law.”

Kenya passed a data protection law last November, which established a data commission to regulate the processing of personal data. It is not clear when this body will be operational and how much sway it will have over regulating the biometric program.

The justices also ruled that collection of DNA and GPS data, which was barred by another court last April, was “intrusive and unnecessary.”

The ruling “partially recognized” how essential biometric data is “to who you are as a human being, and that the government shouldn’t have unchecked power to collect that information and to use it without your consent,” said Nanjala Nyabola, the author of “Digital Democracy, Analogue Politics: How the Internet Era is Transforming Kenya.”

For 22-year-old Hassan Noor, the court’s decision magnifies his anxieties. For four years now, Mr. Noor, who is a Kenyan of Nubian descent, has not been able to get a national identity card. That mean he has not been able to get a job, register a business or travel easily — or get a biometric ID. He is unemployed and lives in Kibera, a poor area southwest of Nairobi.

“I feel bad,” he said of the court’s decision. “I’m not the only one who’ll suffer.”

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