Nairobi, Kenya | By Michael Wandati | Kenya’s new digital identity cards ‘Maisha Namba’ rollout has been temporarily halted by the country’s High Court, pending the resolution of a constitutional challenge.
The Milimani High Court issued conservatory orders halting the further implementation of the Unique Personal Identifier, widely known as Maisha Namba, until the legal challenges against its rollout are resolved in October.
The court’s decision to pause the implementation follows legal objections raised against the digital identity system, emphasizing the need for a thorough review of its compliance with constitutional provisions.
This judicial intervention follows a petition lodged by the Haki na Sheria Initiative, which has brought the case against the national government, the Attorney General, the Interior Cabinet Secretary, and the Principal Registrars of Births, Deaths, and Persons.
Lawyer Summayah Mokku, representing Haki na Sheria, contended that the introduction of Maisha Namba infringes upon constitutional rights and freedoms.
The petitioners argue that the rollout of this identification system may violate legal protections afforded to individuals under the Constitution, prompting the court to review the matter before allowing any further implementation.
“The Respondents have also contravened or threaten to contravene other provisions of the Constitution including Articles 10, 73, 94, 129 and 232 on transparency, right to public participation, right to access information among others,” read court documents.
“The recent confirmations of the Respondents actualize the existing threats to these rights and fundamental freedoms in issue including potential irreversible risk of breach of mass personal data and permanent exclusion of select groups of the population in contravention of Article 31 and 27 of the Constitution respectively. The actions of the Respondents will also undoubtedly render the adjudication of the Petitions before this Honorable Court nugatory and the consequent court process an academic exercise.”
The court’s decision to stay the Maisha Namba rollout underscores the legal system’s role in addressing concerns about the potential impact of new policies on citizens’ rights.
The upcoming hearings in October will determine whether the program can proceed or if modifications are required to ensure it aligns with constitutional guarantees.
While delivering his ruling, Milimani High Court Judge Lawrence Mugambi noted that the respondents are actively collecting, processing and storing data despite security concerns laid out in earlier petitions.
“There is great risk of prejudice being caused to members of the public and their right to privacy by the disclosure of certain types of personal information in the absence of proposals on how that data will be protected,” ruled the Judge.
“Should the respondents be allowed to proceed with this process and later on it is found to be unconstitutional; there is no amount of compensation or measures that can redress data breach.”
Justice Mugambi has expressed concerns that the Maisha Ecosystem might exacerbate existing disparities in citizenship inclusion in Kenya. In his remarks, Justice Mugambi suggested that the new system could further entrench the marginalization of certain groups, potentially widening the gap in citizenship access and rights.
This critique highlights the ongoing debate surrounding the Maisha Ecosystem and its implications for equitable access to citizenship services. The concerns raised will likely influence the court’s upcoming decisions on the system’s implementation and its alignment with principles of inclusivity and fairness.
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“Pending the inter-parties hearing and determination of this Application, the Honourable Court be pleased to issue a conservatory order ex parte staying and/or halting the further and continued implementation of the Unique Personal Identifier (Maisha Namba), 3rd Generation National Identification Card (Maisha Card), Maisha Digital ID and Maisha Database,” he ruled.
“That the Honourable Court be pleased to issue a conservatory order restraining the Respondents whether by themselves, or any of their employees or agents or any person claiming to act under their authority from collecting, processing or storing data of Kenyans and foreign nationals in Kenya in purport of issuance of a Unique Personal Identifier (Maisha Namba).”
The judge has scheduled September 17 for issuing additional directions on the case, following the recent developments. The court has also instructed the respondents to submit their responses to the verdict within the next seven days.
This timeline will provide both parties with an opportunity to address the court’s concerns and contribute further to the ongoing legal proceedings. The forthcoming directions will likely clarify the next steps in the case and determine how the matter will proceed.
