TECHNOLOGY AND HUMAN RIGHTS

Seeing the Unseen: Inclusion and Exclusion in Kenya’s Digital ID
System

On October 28, 2020, the Digital Welfare State and Human Rights Project held a virtual conversation with Nanjala Nyabola for the second in the Transformer States Conversation Series on the topic of inclusion and exclusion in Kenya’s digital ID system. Nanjala is a writer, political analyst, and activist based in Nairobi and author of Digital Democracy, Analogue Politics: How the Internet Era is Transforming Politics in Kenya. Through an energetic and enlightening conversation with Christiaan van Veen and Victoria Adelmant, Nanjala explained the historical context of the Huduma Namba system, Kenya’s latest digital ID scheme, and pointed out a number of pressing concerns with the project.

Kenya’s new digital identity system, known as Huduma Namba, was announced in 2018 and involved the establishment of the Kenyan National Integrated Identity Management System (NIIMS). According to its enabling legislation, NIIMS is intended to be a comprehensive national registration and identity system to promote efficient delivery of public services, by consolidating and harmonizing the law on the registration of persons. This ‘master database’ would, according to the government, become the ‘single source of truth’ on Kenyans. A “Huduma Namba” (a unique identifying number) and “Huduma Card” (a biometric identity card) would be assigned to Kenyan citizens and residents.

Huduma Namba is the latest in a long series of biometric identity systems in Kenya that began with colonization. Kenya has had a form of mandatory identification under the Kipande system since the Native Registration Ordinance of 1915 under the British colonial government. The Kipande system required black men over the age of 16 to be fingerprinted and to carry identification that effectively restricted their freedom of movement and association. Non-compliance carried the threat of criminal punishment and forced labor. Rather than repealing this “cornerstone of the colonial project” upon independence, the government instead embraced and further formalized the Kipande system, making it mandatory for all men over 18. New ID systems were introduced, but always maintained several core elements: biometrics, the collection of ethnic data, and punishment. ID remained necessary for accessing certain buildings, opening bank accounts, buying or selling property and free movement both within and out of Kenya. The fact that women were not included in the national ID system until 1978 further reveals the exclusionary nature of such systems, in this instance along gendered lines.

While, in theory, these ID systems have been mandatory such that anyone should be able to demand and receive an ID, in practice, Kenyans from border communities must be “vetted” before receiving their ID. They must return to their paternal family village to be “vetted” by the local chief as to their community membership. Given the contested nature of Kenya’s borders, many Kenyans who may be ethnically Somali or Masai can face significant difficulty in proving they are “Kenyan” and obtaining the necessary ID. The vetting process can also serve to significantly delay applications. Nanjala explained that some ethnically Somali Kenyans who struggled to gain access to legal identification and therefore were excluded from basic entitlements had resorted to registering as refugees in order to access services.

Given the history of legal identity systems in Kenya, Huduma Namba may offer a promising break from the past and may serve to better include marginalized groups. Huduma Namba is supposed to give a “360 degree legal identity” to Kenyan citizens and residents; it includes women and children; and it is more than just a legal identity, it is also a form of entitlement. For example, Huduma Namba has been said to provide the enabling conditions for universal healthcare, to “facilitate adequate resource allocation” and to “enable citizens to get government services”. However, Nanjala also emphasized that Huduma Namba does not address any of the pre-existing exclusions experienced by certain Kenyans, especially those from border communities. Nanjala noted that the Huduma Namba is “layered over a history of exclusion,” and preserves many of the discriminatory practices experienced under previous systems. As residents must present existing identity documents in order to obtain a Huduma Card, vetting practices will still hinder border communities’ access to the new system, and thereby hinder access to the services to which Huduma Namba will be tied.

Over the course of the conversation Nanjala drew on her rich knowledge and experience to highlight what she sees as a number of ‘red flags’ raised by the Huduma Namba project. These go to the need to properly examine the true motivations behind such digital ID schemes and the actors who promote them. In brief, these are:

• The false promise of the efficiency argument, being that “efficient’ technological solutions and data will fix social problems. This argument ignores the social, political and historical context and complexities of governing a state, and merely perpetuates the ‘McKinseyfication’ of government (being an increasing pervasiveness of management consultancy in development). Further, there is little evidence that such efficient solutions will actually work, as was seen in relation to the Integrated Financial Management Information System (IFMIS) rolled out in Kenya in 2013. Such arguments detract attention from examining why problems such as poor infrastructure, healthcare or education systems have arisen or have not been addressed. Nanjala noted that the ongoing COVID-19 pandemic has made the risks of this clear: while the Kenyan government has spent over $6million on the Huduma Namba system, the country has only 518 ICU beds.
• The fact that the government is relying on threats and intimidation to “encourage” citizens to register for Huduma Namba. Nanjala posited that if a government is offering citizens a real service or benefit, it should be able to articulate a strong case for adoption such that citizens will see the benefit and willingly sign up.
• The lack of clear information and analysis, including any cost benefit analysis or clear articulation of the why and how of the Huduma Namba system, available to citizens or researchers.
• The complex political motivations behind the government’s actions, which hinge primarily on the current administration’s campaign promises and eye to the next election, rather than centring longer-term benefits to the population.
• The risks associated with unchecked data collection, which include improper use and monetization of citizens’ data by government.

While much of the conversation addressed clear concerns with the Huduma Namba project, Nanjala also discussed how human rights law, movements and actors can help bring about more positive developments in this area. Firstly, this year’s decision by the Kenyan High Court, which was brought by the Kenyan Human Rights Commission, Kenya National Commission on Human Rights and Nubian Rights Forum, held that the Huduma Namba scheme could not proceed without appropriate data protection and privacy safeguards, was an inspiring example of the effectiveness of grassroots activism and rights-based litigation.

Further, this case provided an example of how human rights frameworks can enable transnational conversations about rights issues. Nanjala reminded us to question why it is that the UK can vote to avoid digital ID systems while British companies are simultaneously deploying digital ID technologies in the developing world, that is, why digital ID might be seen to be good enough for the colonized, but not the colonizers. And as digital ID systems are being widely promulgated by the World Bank throughout the Global South, Nanjala identified the successful south-south collaboration and knowledge exchange between Indian and Kenyan activists, lawyers and scholars in relation to India’s widely criticized digital ID system, Aadhaar. By learning about the Indian experience, Kenyan organizations were able to more effectively push back against some of the particular concerns with Huduma Namba. Looking at the severe harms that have arisen from the centralized biometric system in India can also help demonstrate the risks of such schemes.

Digital ID systems risk reducing humanity to mere data points, and so, to the extent that they do so, should be resisted. We are not just data points, and considering data as the “new” gold or oil positions our identities as resources to be exploited by companies and governments as they see fit. Nanjala explained that the point of government is not to oversimplify or exploit the human experience, but rather to leverage the resources that government collects to maximize the human experience of its residents. In the context of ever increasing intrusions into privacy cloaked in claims of making life “easier”, Nanjala’s comments and critique provided a timely reminder to focus on the humans at the center of ongoing debates about our digital lives, identities and rights.

Holly Ritson, LLM program, NYU School of Law; and Human Rights Scholar with the Digital Welfare State and Human Rights Project.

TECHNOLOGY AND HUMAN RIGHTS

Human Rights in the Digital Age: Can they Make a Difference?

This event brought together international policymakers, human rights practitioners, leading academics and representatives from technology companies to discuss the relevance of the international human rights law framework in a world increasingly dominated by digital technologies.

In only a few decades, we have witnessed tremendous change through digital innovation, from personal computers, a globe-spanning Internet, and ubiquitous smartphones, to rapid advances in Artificial Intelligence. As we express ever more of ourselves digitally, the economy is built around the data generated, which is then used to predict and nudge our future behavior. Surveillance capitalism (Zuboff, 2019) is being matched by the digitization of government, whether in national security, policing, immigration or court systems. And postwar welfare states are rapidly becoming digital welfare states (Alston & Van Veen, 2019).

The speed, magnitude and complexity of these developments have left little or no time for reflection let alone resistance on the part of most of those affected.  Only now is the world waking up to the value-choices implicit in embracing many of these technological changes. And many of the initiatives designed to curb the excesses of the digital age are entirely voluntary, based in malleable conceptions of ethics, and themselves reliant upon technological solutions promoted by the very Big Tech firms these initiatives are supposed to regulate.

This event focused on the role of law, democratic institutions and human rights in the digital age. Can the societal impacts of digital technologies be meaningfully addressed in the language of rights? What difference does it make to insist on applying the lens of human rights law? What difference can international and domestic human rights accountability mechanisms make in the technology debate? Whose voices and issues are neglected in this debate and how can human rights law empower those on the margins of society?

The keynote speaker was Michelle Bachelet, United Nations High Commissioner for Human Rights; and the panel moderated by Ed Pilkington, Chief Reporter, Guardian US, featured:

• Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights and John Norton Pomeroy Professor of Law, New York University School of Law
• Michelle Bachelet, United Nations High Commissioner for Human Rights
• Chris Hughes, Co-founder of Facebook and Co-Chair of the Economic Security Project and Senior Advisor, Roosevelt Institute
• Kumi Naidoo, Secretary General, Amnesty International
• Shoshana Zuboff, Charles Edward Wilson Professor Emerita, Harvard Business School and author of The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (2019)

October 17, 2019. This event was co-hosted by the UN Special Rapporteur on extreme poverty and human rights, the Center for Human Rights and Global Justice at New York University School of Law and Amnesty International with the Guardian as a media partner.