Source: Oxford Human Rights Hub
On 30 January 2020, the High Court of Kenya – the first level of the country’s superior courts, whose decisions can be appealed to the Court of Appeal and Supreme Court – handed down its judgment in the case of Nubian Rights Forum and Others v Attorney General. The case concerned a challenge to the constitutionality of the government’s National Integrated Identity Management System (NIIMS), a biometric ID scheme also known as ‘Huduma Namba’. The Court determined that the implementation of NIIMS should be halted until the enactment of an adequate legislative and regulatory framework governing its use.
Introduced in January 2019, the NIIMS scheme involves the creation of a national database through collection of personal and biometric data, from which unique ID numbers and ID cards will issued. These will be required to access a range of government services, including education, housing and healthcare. The scheme applies to all Kenyan citizens aged 6 and above, including those living abroad, as well as to refugees and foreign nationals resident in the country.
The case was initiated in February 2019, and in April 2019, the High Court issued an interim ruling, pending a full hearing. The ruling permitted the government to proceed with data collection, but imposed several conditions, including that registration could not be mandatory. During April and May 2019, authorities undertook a mass registration drive, and there are now reportedly almost 40 million people registered on the database.
Petitions brought by three civil society organisations – the Nubian Rights Forum, the Kenya Commission on Human Rights and the Kenya National Commission on Human Rights – were consolidated and heard together in September 2019. The Court identified three substantive issues for determination: firstly, whether the legislative process for NIIMS had been constitutional; secondly, whether the legislation violated the right to privacy under Article 31 of the Kenyan Constitution (KC); and thirdly, whether it violated the right to equality and non-discrimination under Article 27 KC.