Digital Identity and the legal obligation to conduct a human rights impact assessment in Kenya
Source: University of California, Berkeley’s International Human Rights Law Clinic and Haki Na Sheria Initiative
Famously described as “the right to have rights,” nationality – and the identity documentation to prove this nationality – are fundamental rights in and of themselves, and operate as requirements to access a huge swath of government services and other basic rights. As a result, when implementing legislation that centrally impacts nationality, such as digital identity systems (digital ID), governments must carefully consider program impacts and design programs that further the realization of human rights, not risk their violation.
Recognizing the fundamental nature of nationality, this report is intended to support advocacy regarding the proposed digital ID in Kenya. Students and faculty at the University of California, Berkeley’s International Human Rights Law Clinic (the Clinic) and Haki Na Sheria Initiative (HSI), a Garissa-based Kenyan CSO, developed the report from January to April of 2023, including a week of key informant interviews in Nairobi.
At the outset of the partnership between HSI and the Clinic, HSI identified human rights impact assessments (HRIA) as a possible tool to better evaluate the human rights risks of Kenya’s proposed digital ID. A systematic evaluation of the human rights risks of legislation, a HRIA offers the opportunity to ground the assessment of legislation in a State’s human rights obligations and address risks accordingly. Because a HRIA might complement the Data Protection Impact Assessment required by Kenyan High Court in the 2020 decision following the challenge to Huduma Namba, we focused on how a HRIA could address concerns of exclusion and discrimination as a result of digital ID. This report summarises both the potential value of HRIAs and the legal obligations that may require Kenya to conduct a HRIA prior to the implementation of digital ID.
The structure of the report is as follows. Part II outlines background on digital ID and communities possibly affected by discrimination and exclusion. Part III outlines the parameters of an effective HRIA and examples of effective HRIAs in other jurisdictions Part IV describes the relevant legal obligations that would require Kenya to conduct a HRIA. Part V provides a series of the potential rights violations that would be identified through an effective HRIA, and Part VI discusses a series of recommendations for governments, CSOs, involved international organizations, and community-based organizations.
Download: HSI-UCB Digital ID & HR impact assessments 2023