The government is now free to continue with the rollout of the third-generation digital identity card known as Maisha Card after the High Court lifted an order issued last month, blocking the implementation.
Justice Lawrence Mugambi lifted the order on Monday stating that the process has been going on contrary to claims by the petitioner- Haki Na Sheria Initiative- that there was a planned mass rollout, which the court relied on when it granted the order.
Immigration PS Prof Julius Bitok stated that the order had impacted negatively on the general public particularly the youth who were turning 18 years, daily and who could not get identity cards, hence shutting them out of government services, such as applying for driving licenses, applying for passports, registering businesses, enrolling to universities and tertiary institutions.
“Having regard to the foregoing reasons, I am persuaded that it is not in public interest to maintain the interim conservatory order,” said the judge.
Justice Mugambi said there was a clear demonstration that the suspension of the registration of Kenyans had very direct immediate adverse consequences on a very large population.
Prof Bitok said in an affidavit that there was over 1.21 million backlog of identity cards that were pending processing as at July 31, 2024.
The PS said failure to get the identity cards could mean loss of job opportunities and the failure to get other crucial documents such as registration of companies and businesses.
Last month, the judge 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 Maisha Database, which is expected to consolidate existing and independent databases into a single register.
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 hearing before the High Court on October 4, 2024.
The lobby said there was 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 government, however, said the order has had the consequence of stopping the processing and storage of the data wholly to the extent that access to e-Citizen system services is completely disabled yet most government services depend on it.
Prof Bitok added that the services affected include the e-citizen portal, which supports payment of virtually all government services and more than 450 government agencies depend on it to confirm status.
He added that the system supports government infrastructure, for instance, the police service online occurrence book and judiciary information system.
Justice Mugambi said while issuing the order on July 25, 2024, the court gave immense weight to the assertion that there was an imminent mass rollout exercise for Maisha Database and associated products.
The government said the information was factually misleading as there was no mass rollout but an update on the implementation of the Maisha ecosystem, which was already an ongoing matter.
The court noted that a total of six cases have been filed seeking to stop the implementation of the new digital identity card, which will be renewed every 10 years.
Prof Bitok also said before implementing the Maisha Ecosystem, a comprehensive Data Protection Impact Assessment was conducted and submitted to the Data Protection Commissioner, who confirmed its compliance with Section 31 of the Data Protection Act.
The petitioner through Haretha M. Bulle opposed the lifting of the order arguing that it was necessary to preserve the substratum of the petition because if the actions of the government are found to be unconstitutional, the process will be irreversible and damages may not adequately compensate those aggrieved.
