The High Court has suspended new digital IDs and urged the government not to register persons or issue new generation IDs.
Justice John Chigiti has issued the orders after certifying the matter as urgent
An application filed at Milimani law court by Katiba Institute sought to restrain the government from executing or further executing the November 1, 2023 decision to roll out the Maisha Namba Cards before conducting a data protection impact assessment per section 31 of the Data Protection Act.
"Mandamus compelling the Respondents to conduct a data protection impact assessment per section 31 of the Data Protection Act before piloting or rolling out the Maisha Namba, including the digital card, digital ID, unique personal identifier, and National Master Population Register," the Institute argued.
Katiba also wanted a declaration that the Registration of Persons (Amendment) Regulations, 2023 and Birth and Deaths (Amendment) Regulations, 2023, were adopted in violation of the Statutory Instruments Act and are unconstitutional and invalid.
They argued that Section 31 of the Data Protection Act requires the Respondents to conduct a data protection impact assessment if data processing is likely to result in a high risk to the rights and freedoms of a data subject by its nature, scope, context, and purposes.
The data protection impact assessment must happen before any data has been processed.
They argued that the Court has twice held that section 31 of the Data Protection Act requires the state to conduct a data protection impact assessment to defer processing data required for digital identifications.
"On September 19, 2023, the Immigration and Citizen Services PS, Ministry of Interior and National Administration announced that the government was finalising the Maisha Namba, which it described as a third-generation ID that includes a digital card, digital ID, unique personal identifier, and a National Master Population Register. The Maisha Namba is meant to replace the stalled attempt to roll out the Huduma Namba," they said.
As with the Huduma Namba, the Maisha Namba requires Kenyans to provide biographical information and biometric data, including date of birth, gender, facial image, parentage information, and contact information.
On October 25, 2023, the Respondents published the Registration of Persons (Amendment) Regulations, 2023 and Birth and Deaths (Amendment) Regulations, 2023, these amended regulations, intended to facilitate the rushed rollout of the Maisha Namas, violate Article 94(6) of the Constitution.
The amendments are alan ultra vires, as the Respondents exceeded their authority by using regulations to amend the primary legislation and adopted regulations in violation of the Statutory Instruments Act.
Finally, the amendments were not preceded by any public participation or the publication and publicising of important information as required under Articles 10, 31, 35, and 47 of the Constitution
On November 1, 2023, the Respondents, relying on the ultra vires amendments to the regulations, announced they would begin rolling out the Maisha Card effective immediately.
Although the Respondents described the rollout as piloting the Maisha Namba, it does not appear to be a pilot project, it is not a small-scale test of the Maisha Namba to determine its feasibility but a nationwide rollout.
In making this announcement, Katiba Institute said the Respondents have exceeded their authority and are acting ultra vines the law and the Constitution because they do not have a legal basis for rolling out the Maisha Namba.
"They have proceeded without completing a data protection impact assessment in violation of Section 31 of the Data Protection Act and this court's holdings," Katiba Institute said.
"They have proceeded without conducting meaningful public participation or publishing important information relating to the rollout."
The judge further directed the application to be served within 7 days for the interpartes hearing of prayer within 7 days of today's date.
The matter will be mentioned on February 2, 2024.