The High Court has suspended the implementation new digital identity card, known as the Maisha Card, pending the determination of a petition filed by a Garissa-based lobby group.
Justice Lawrence Mugambi suspended the implementation of the Unique Personal Identifier (UPI), which is known as Maisha Namba, the rollout of the 3rd Generation ID card, the Maisha Digital ID, and the Maisha Database, which is expected to consolidate existing and independent databases into a single register.
“The Court is satisfied that based on the latest disclosure, an order staying any further and/or continued implementation pending the hearing and determination of this application ought to be issued,” the judge said.
Haki Na Sheria Initiative stated that the government had confirmed the mass collection, processing, and storage of data with plans to issue a UPI and the Maisha Digital ID and the enrollment of the Maisha database.
However, the constitutionality of the database has been disputed and the matter is pending a hearing before the High Court on October 4, 2024.
The lobby said there is a great risk that members of the public will be prejudiced as certain types of personal information will be disclosed and their right to privacy breached, in the absence of proposals on how the data will be protected.
The court heard that the rollout of the Maisha ecosystem is also bound to solidify the already widened exclusion of marginalised citizens.
The court was informed that the main grounds for challenging the Maisha Namba database rollout is the consequent irreparable violations of numerous fundamental rights and freedoms provided for in the constitution.
This is the third attempt to stop the rollout following the blocking of Huduma Namba and last year’s temporary stoppage of Maisha Card before the order was lifted in February.
In the case filed last year, lobby group Katiba Institute argued that there was no data protection impact assessment, and the rollout was being done without conducting meaningful public participation or publishing important information relating to the implementation.
PS Immigration and Citizen Services, Julius Bitok, however, informed the court in response to the case that the data protection impact assessment was conducted before the piloting was done in November last year.
The PS said the government had, therefore, complied with the condition, and the fact was not brought to the attention of the court.
Further, the government argued that Kenyans could not access the national identification cards, which are crucial documents because of the petition.
During the launch of the programme on a pilot basis last year, Mr Bitok explained that the Maisha Digital ID will be a lifelong personal identity number and holders will use access to other government services such as educational institutions (NEMIS), and health insurance.
“That the recent confirmations of the respondents actualise the existing threats to these rights and fundamental freedoms in the issue including the potential irreversible risk of breach of mass personal data and permanent exclusion of select groups of the population in contravention of Article 31 and 27 of the constitution,” Haki Na Sheria Initiative stated.
“The Court has to preserve the substratum of the Petition, for if the mass rollout goes on, if eventually, the court finds there was a violation, that may not easily be redressed,” the judge said.
The judge directed the petitioner to serve the Attorney General with the court papers by July 26 and slated the case for mention on September 17, for further directions.
The lobby said the government has confirmed in two circulars that the Maisha ecosystem enrollment will be done in three major ways- the issuance of Maisha Cards to children at birth, issuance of IDs to first-time applicants, who have turned 18 years, and to adults who hold second generation ID, who apply to replace lost a lost ID.
“The respondents already confirmed the current problems relating to the issuance of 2nd generation ID and the consequent exclusion of certain groups in Kenya owing to secondary vetting and access to registration centres through their April 2024 registration Guidelines for issuance of National Identity Cards in the border, urban/cosmopolitan and settlement counties,” Haretha Bulle, the chairperson of the lobby group, said in an affidavit.
She pointed out that children from minority and marginalised communities have trouble procuring documents such as birth certificates owing to challenges such as accessing registration centers or years of secondary vetting of their parents and grandparents in procuring 1stand 2nd generation IDs leading to disenfranchisement.
