A Model Governance Framework Analysis of Kenya’s Maisha Namba  

An Access to Justice Clinic Report | August 2024

Introduction & Summary of Recommendations 

When someone lacks proof of identity they lose political representation, social support, educational opportunities, mobility, employability, societal connections, and more. Lack of proof of identity and discrimination in the administration of identification registration and credentialing – physical and digital – are leading causes of arbitrary deprivation of nationality and statelessness.  

As technologies advance and global leaders look to digital solutions to accelerate progress in meeting anti-poverty, environmental and sustainable development targets, many countries are adopting digital technologies to operate national identity and civil registration systems, as a facet of cross-cutting projects to digitize huge swaths of economies and public administration. Builders, financers and operators of digital identity systems (“digital ID” or, when referring to national identity systems that confirm or provide proof of nationality, “digital national ID”) assert that they can help people gain legal identity (recognition of personhood before the law), strengthen the enjoyment of constitutional rights, and streamline government services.  

In Kenya, since 2023, these claims have been offered in support of the government’s Maisha Namba identity management and payments ecosystem. However, the Maisha Namba system as currently envisioned is poised to exacerbate existing inequalities and further marginalize people who are unable to obtain identity documents under the traditional configuration, which is best described as a hybrid of digital records and paper-based systems, unequally administered to the exclusion of minority groups¹, as noted and discussed further throughout this report.  

Equality and non-discrimination violations receive less attention than other human rights impacts of digital ID systems, as compared to other fundamental rights like privacy and freedom of expression. This report, authored with support and guidance from Kenyan civil society organizations based in impacted communities, is an effort to fill this unfortunate gap while the laws, policies and practices governing the Maisha Namba system are still in development and therefore ripe for reform. To be effective, guarantees of equality and non-discrimination must be understood holistically, not only as an independent feature of regulating vast digital systems, but also as an integral aspect of all governance. This report adopts a holistic approach, integrating an equality lens across all metrics of digital ID governance and tailoring recommendations accordingly. 

The report utilizes a new digital ID governance assessment tool as its organizing framework. In September 2023, the United Nations Development Programme (UNDP) released a Model Governance Framework for Digital Legal Identity Systems (MGF) after roughly two years of consultation surrounding its creation. Just prior to the release of the framework, in July 2023, UNDP and the Kenyan government entered a Memorandum of Understanding (MOU) to partner in the creation and implementation of Kenya’s digital ID system.¹ The specific purpose of the UNDP MGF is to help develop rights-based, inclusive digital ID systems. This report utilizes the MGF because it is a multifaceted approach to analyzing the adequacy of digital ID systems. It is the first independent, public report applying the MFG. 

In the MGF, each element, such as User Value or Accountability and the Rule of Law, is further broken down into “sub-elements” which are explained in further detail with “anchor questions” for implementers to ask as well as descriptions of the rights-related implications of the sub-element and references to relevant international standards. The sections of this report employ these resources in providing a holistic assessment of Kenya’s Maisha Namba. The MGF is depicted graphically below with each of the eight spokes on the wheel representing an individual element of the framework. 

The evidence assembled in this report draws from and expands upon the work of previous reports and litigation concerning Kenya’s digital identity ecosystem. Key resources include  Haki na Sheria Initiative’s report and constitutional litigation on double registrations and statelessness,² the University of California at Berkeley’s privacy recommendations for the Maisha Namba system,³ previous litigation and human rights work on the Huduma Namba system led by Nubian Rights Forum (NRF) and Kenya Human Rights Commission (KHRC), Amnesty International’s recent report on human rights impacts of digital ID and the Maisha Namba system,⁴ and other UN reports on human rights, civil registration, and national identity systems.⁵  

The focus of this report is systematically addressed to the experiences and needs of marginalized groups, including people living in rural areas, practicing nomadic or semi-nomadic ways of life, living without access to connectivity or power, living in extreme poverty, or experiencing heightened collectively applied security vetting on account of their tribe, religion and/or ethnicity, among other factors.  

Extensive documentation confirms these issues of systemic discrimination exist in Kenya and persist despite vocal advocacy by representatives of impacted groups and other supportive actors, meaning that the Maisha Namba project offers a primary case study in how digital ID governance can tackle structural discrimination head-on, as opposed to ignoring and reproducing it.  As a result, this report will highlight the gaps or shortcomings of the MGF itself as a tool for the identification and articulation of the needs of the above populations, in addition to clarifying where the MGF, as applied, has surfaced priority areas of concern requiring urgent attention.  

Due to space and information access constraints, the “Capable Institutions” element of the MFG is not applied here, although future research considering questions of institutional structures, inter-agency power-sharing, and independent oversight would lend significant value to the effective governance of the Kenyan identity ecosystem. 

Summary of Recommendations

To the Kenyan Government [discuss with HSI]  To the United Nations Development Programme:  The following elements or sub-elements of the MGF can be strengthened through implementation of the following recommendations:  1. Equality and Non-Discrimination: explicitly reference the importance of protection against all forms of indirect discrimination and reference relevant international and regional standards to guide in the appropriate application of those standards to digital ID systems.  2. Accountability and the Rule of Law: make direct reference to the need to adequately, sustainably, and thoughtfully provide financial support civil society and community-based organization to provide legal and paralegal advice to users of digital identity.     3. Public Participation and Access to Information:  a. Ensure that the concepts of public awareness and public participation are clearly distinguished from one another, and the duty-bearer obligations in each case are clearly articulated.    b. Acknowledge and address the issue of “civil society washing” in public participation processes and provide additional guidance to implementers that consultation should be free of exploitation and access to consultations should not be tied to support for government programs or policies.    c. Provide additional guidance on the quality and implementation of right to information laws in practice, especially concerning overbroad exemptions for national security and response timelines

Methodology 

This report was co-authored by a team of four advanced law student researchers overseen and guided by senior lawyers from Haki na Sheria Initiative, alongside legal supervisors at Temple University, Beasley School of Law. The primary researchers reviewed current reports and documents such as news articles, statutes, and legal documents for background literature. In February 2024, at the project’s inception, a legal injunction (conservatory orders) temporarily halting the issuance of Maisha Namba cards was lifted, permitting the cards to begin circulating in Kenya. Researchers also conducted interviews with representatives from civil society groups, community-based paralegals based in Garissa, Northeastern Kenya, Garissa-based government workers in the health service and National Registration Bureau, and residents of Garissa County who experienced difficulties acquiring national IDs. The interviews were treated as discovery interviews with key informants, small focus groups, and qualitative information to contextualize desk research. Additionally, the interview findings have been summarized and anonymized to ensure the privacy and safety of interviewees.  

There is scant public information available on how the Maisha Namba system operates in practice. Notably, this gap includes the absence of complete information concerning which government agencies are involved in the implementation and administration of the Maisha Namba system, and how separate agencies implicated in the system’s governance and operation function together.  

Overview of the Maisha Namba System 

The Maisha Namba System has four fundamental components: a national identity card (the Maisha Card), a unique personal identification number (the Maisha Namba, also referred to as UPI and EID), a national population register in the form of a centralized identity management database, and an online service request processing and payment portal (the e-Citizen portal). The Maisha Card is a third-generation electronic identification card with multiple purposes. According to the Kenyan government, the Maisha Card will serve as travel documentation as well as personal identification for public and private benefits.⁷ The Maisha Namba (Life Number in English) is a “unique personal identification number assigned to every Kenyan citizen upon registration” that is meant to serve as an identity number for the entire life of the individual connected to it.⁸ The number has been described as a “digital shadow” that is tied to both the Maisha Card and other social systems such as birth registration, educational enrollment and services, health insurance, the Kenya Revenue Authority, the National Social Security Fund, and death certificates.⁹ There are also plans to tie the number to private sector digital transactions as well as public ones.¹⁰ 

Structure of the Digital ID Biometric Database and e-Citizen Portal 

Based on information available to the public, it is unclear how the Maisha system project is funded,¹¹ how the population register is designed, how built the data-sharing architecture of the system is, and what data are stored in or flow through it. the Maisha Namba system may rely on the Kenyan biometric database purportedly created in the Huduma Namba era, the National Integrated Identity Management System (NIIMS).¹² This database was said to have been created through mass enrollment exercises undertaken in 2019 in accordance with 2018 amendments to the Registration of Persons Act.¹³ NIIMS was intended to serve as a centralized “hub” database connected to other government databases and agencies, such as Kenya’s National Social Security Fund (NSSF), National Health Insurance Fund (NHIF), and National Transport and Safety Authority (NTSA).¹⁴ To create the NIIMS, Kenya held a thirty-day national registration to collect information on “nationality, place of birth, parentage, marital status, education background, employment status, disability, agricultural activities, and biometrics—including fingerprints and a photograph.”¹⁵ Other biometric information collection authorized under the 2018 amendment includes voice waves, “hand geometry,” “retina and iris patterns,” and DNA, in addition to GPS coordinates, although at the time of writing these have not yet been collected.¹⁶ In ongoing litigation, lawyers representing the Ministry of Interior have stated that the Maisha Namba is merely “an upgrade of the second-generation ID, birth certificate, and rebranding” that would not involve fresh data collection.¹⁷ These arguments suggest that the identity verification and authentication processes envisioned would rely, to some extent, on matching with registration data stored in pre-existing National Registration Bureau databases – with a long history of inaccuracies and corruption.¹⁸ 

In addition to risks to privacy posed by the outsized volume and sensitivity of this data, the Maisha Namba system poses further risks to marginalized populations because, like the Huduma Namba system and its NIIMS database design, Maisha Namba also relies on existing identification documents like birth certificate numbers and national identity card numbers for critical steps like enrollment and authentication of identity for access to services.¹⁹ People who do not already possess these forms of identification experienced difficulty registering for NIIMS.²⁰ Their ability to access the potentially thousands of services linked to the system, including essential public services like social security, education, and healthcare, is now in question.²¹  

The national population database component of the Maisha Namba system employs a centralized hub and spoke model centered around a biometric master database where all personal information collected is stored, including information collected under the previous iterations of Kenya’s ID system.²² These biometrics are used to verify a person’s identity and authenticate their eligibility for various services, for instance in conjunction with their tax identification number for tax payments, or with a school registration account (in the country’s NEMIS system) for educational records and registration.²³ Based on interviews with civil society organizations between February and April 2024, the Maisha Namba UPI was already a required field for enrollment in NEMIS.  

The e-Citizen web portal is Kenya’s public-facing government digital payment platform; it is also linked to the Maisha Namba.²⁴ All government payments have been digitized in Kenya since 2014.²⁵ This amounts to billions of shillings processed for systems like the Kenyan treasury and school systems.²⁶ The platform was originally privately owned by a company called Webmasters, but is now owned by the government; however, at the time of this report Webmasters still collects a fee on all transactions.²⁷ The scope and content of data-sharing and electronic storage of data by both entities is not public, leaving major questions about data governance and privacy unanswered. Thus, both the Kenyan government and Webmasters may control or have access to massive stores of real-time  financial data as well as transactional metadata painting a detailed picture of individual and collective behavioral patterns, all of which can be linked to individual profiles through the Maisha system. 

A Focus on Equality and Access to Justice for Marginalized Groups 

This report examines the Maisha Namba system in its relation to stakeholders from marginalized communities, including ethnic and religious minorities like the Nubians, Kenyan Somalis and the Pemba, nomadic groups and those living in rural areas facing chronic exclusion from key government services like broadband and birth registration access. With respect to many minority ethnic groups associated with borders, historically these communities have experienced difficulties in registering for IDs and are often subjected to discriminatory “vetting” practices which require additional screening steps simply based on religion, tribal identity, or proximity to border regions. The Maisha Namba system threatens to worsen these historical injustices. Our aim is to complement other reports tracking Kenya’s transition to digital service delivery and a digital economy with a comprehensive account of the situation for people without equal access to official legal identity documentation – a situation that has persisted in Kenya for decades. The goal of this paper is to identify the effects Maisha Namba may have on these stakeholders and identify potential solutions. 

Equality and Non-Discrimination 

Equality and non-discrimination are essential elements of a rights-based approach to digital legal identity. 

The UNDP MGF covers equality and non-discrimination in a dedicated section that looks at both protections against discrimination in general and the rights of non-citizens in particular. The latter is important because digital legal identity systems are often arbiters of critical forms of proof of nationality, and systemic failures can jeopardize an individual’s legal status arbitrarily, leading to grave violations of human rights and denial of protection. Such failures can even result in or risk statelessness, the situation in which an individual is not recognized by any state according to the operation of its law. 

While the Kenyan constitution assures freedom from discrimination (principally through Article 27), the reality is that identity bureaucracies have been rife with discrimination against particular groups for many years, and new challenges tied to digitalization pose new risks on top of the existing structures that have left historically marginalized communities under documented and deterred in accessing public services and exercising their rights as citizens.  

Protections Against Discrimination 

Constitutional protections against discrimination in Kenya have not been effective in ending patterns of discrimination. Discrimination along lines of gender, age, ability, and sexual orientation affects around one in two Kenyans.²⁸ While these manifestations of discrimination are not always directly caused by ID practices, other forms of discrimination can be compounded by these practices, or the practices themselves can create homegrown discrimination issues.²⁹ The more compromised an individual is in their access to ID registration, the wider and more harmful person-to-person discrimination can be.  

In Kenya’s ID administration dating back to at least the 1990s, Nubians and other populations defined loosely as “border communities” face complex vetting processes to obtain national IDs and passports, documents that are fundamental to recognition of citizenship as Kenyan birth certificates are not proof of citizenship and no other form of documentary proof of legal status exists in practice besides the national ID, a document for which Kenyans are eligible to apply at age 18.³⁰ By now, the effects of vetting for many of these communities have been extensively documented, with comprehensive reports and litigation in national and regional fora beginning in the early 2000s. Kenyan Somalis have historically faced discriminatory screening “to prove their citizenship.”³¹ Kenyans with Muslim names are discriminated against in seeking ID, compounding religion- and ethnicity-based discrimination.³² When traveling from Garissa County, on the eastern border, Kenyan Somalis must pass through numerous checkpoints where authorities invariably question the genuineness of their citizenship, making travel outside of Garissa to more developed parts of the country long and treacherous.³³ 

In 2018 and early 2019, when the amendments to the Registration of Persons Act were adopted to accommodate the Huduma Namba system, the Nubian Rights Forum (NRF) joined with other civil  society and community advocacy groups to challenge the system in court resulting in a consolidated set of constitutional petitions raising both procedural and substantive causes of action, chiefly related to privacy, mass surveillance, and discrimination (NRF et al. v. Attorney General, et al.). Other groups brought a parallel challenge in 2020, based on the government’s obligation to conduct a Data Protection Impact Assessment (DPIA) for the system, under the 2019 Data Protection Act and constitutional privacy guarantees (R. v. Mucheru). In R. v. Mucheru, on 14 October 2021,³⁴ the High Court of Kenya (a court of first instance in this case) annulled the government’s decision to roll out Huduma Cards and ordered that a DPIA should be conducted before the further processing of data and rolling out of Huduma Cards.³⁵  

Meanwhile, in January 2020, the Kenyan High Court issued an opinion in the NRF constitutional petitions, requiring the government to adopt a comprehensive legal and regulatory framework to address privacy and general discrimination risks prior to the rollout of the NIIMS system. While the court’s decision, like the 2021 DPIA decision, can be viewed as a positive outcome for protection of individual rights in the implementation of digital national ID systems, it is notably weak in the protection of minorities like the Nubians, who were the lead litigants in the case, from arbitrary treatment and direct and indirect discrimination.  

One of the issues in the NRF case was whether the NIIMS system “exacerbates discrimination of persons already suffering discrimination in the process of acquiring proof of identity and Kenyan citizenship.”³⁶ Linking of education, healthcare, and other services to the one ID number further penalizes ethnic and religious minorities who are at a greater risk of being locked out or later denied access to the system due to their chronic under-documentation: Nubian “children whose parents suffer discrimination in access to ID documents [for example] face the threat of being locked out of the system” because it requires birth certificates and parents’ ID numbers.³⁷ Moving forward with digitizing ID systems without correcting discrimination issues leaves marginalized groups behind and vulnerable to retrogressive effects with respect to their access to essential rights and public services.³⁸ Unfortunately, the court took a narrow and restrictive view in its decision, and dismissed the discrimination claims principally because the challenged amendments to the Registration of Persons Act did not establish vetting. This is a textbook example of failure to apply protections against indirect or disparate impact discrimination, which is in fact protected under Article 27 of the Kenyan Constitution, including in cases of historical discrimination against particular communities like the Nubians. The applicants appealed the case to the Court of Appeal to reconsider. Although the appeal was lodged in 2020 along with a request for urgent review, the case is still pending, and no action has been taken to hasten its consideration even as the new administration has moved to implement a strikingly similar ID system. 

As of August 2024, it is possible that the NRF appeal to the in the Huduma Namba litigation has expired or will expire without ever being addressed.³⁹ 

Rights of Non-Citizens  

The MGF’s guidance to digital ID implementers falls short of recognizing the situation of Nubians and similarly situated groups in Kenya, and there is a residual risk that, even if governments follow the standards and advice contained in the framework, such longstanding patterns of discrimination will persist. While the MGF’s emphasis on non-citizens’ rights and basic protections for non-citizens including refugees and stateless persons in relation to the implementation of digital ID systems, it fails to directly address the situation in which identity management systems systematically and arbitrarily classify citizens from particular groups and non-citizens. This is another version of the same pitfall in the High Court’s decision in the NRF case: a failure to appreciate the importance of protections against indirect discrimination, or a difference in treatment that results from surrounding circumstances that place particular groups, based on race or religion for instance, at a particular disadvantage.  

Both the NRF High Court judgment and the UNDP MGF treat discrimination as a formal question that can be resolved solely based on immediate facts, without a deeper understand of historical circumstances, or institutional and legal frameworks. There is little appreciation for the reality of arbitrary deprivation of legal status – for example, the de facto rendering of a citizen into a situation of legal limbo with respect to their citizenship – even though this is a well-recognized cause of statelessness, which in turn is one of the chief preoccupations of this section of the MGF. As this report is chiefly focused on the conditions and implications of marginalization in relation to the rollout of new digital ID systems, this shortcoming is disappointing and should not function to diminish the importance of indirect discrimination protections as an essential protection of equality in the transition to digital national IDs, in Kenya and in other countries.  

With respect to other elements of the MGF regarding the rights of non-citizens, Kenya’s existing regulatory framework falls short. Citizenship is acquired through birth to a Kenyan parent or through registration (naturalization, or acquisition other than by birth), but registration processes for migrants, children of migrants, and stateless people have posed challenge in practice.⁴⁰ The 2010 Constitution of Kenya does not address the issue of stateless persons, and legislative measures provided limited and time-bound protection for particular stateless groups (through registration), yielding predictably piecemeal results.⁴¹ 

Kenya is not a party to the two main international treaties addressing statelessness.⁴²  

However, it is important to emphasize that none of the international or regional standards addressing the right to a nationality and protection from statelessness, or the authoritative interpretations offered directly to Kenya, have sufficed to eliminate the main barriers to secure citizenship for marginalized groups like vetting for national IDs and passports.  

Recommendations 

The persistence of insecure legal status for Nubians, Somalis and other communities whose nationality is arbitrarily cast into doubt should be a bar none priority for reform. The Kenyan government should also prioritize effective ID administration taking into consideration the future challenges and barriers these populations may face on account of their vulnerable status in the country. Climate change, for instance, is projected to displace hundreds of millions of people in the next few decades.⁴³ Much of Kenya, including Garissa County, faces environmental stress and desertification.⁴⁴ This internal migration may exacerbate any unresolved discrimination destabilizing citizens from these groups in their right to remain and live in their own country. 

Accountability and the Rule of Law 

The accountability and rule of law framework element contributes to ensuring that the digital identity system, and its management and impact, are accountable and subject to the rule of law. . . The specific sub-elements that this element includes are administrative review and appeal, independent oversight, judicial oversight, access to legal advice and remedies. 

The UNDP MGF’s elements on accountability and rule of law aim to ensure that the development, management, and impact of a digital ID system is accountable under the rule of law. This includes providing a system for correcting errors and exclusions and for remedy and redress through independent agency or judicial oversight.  

The United Nations defines the rule of law as a principle of governance in which all persons, institutions, and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.⁴⁵ 

Based on the anchoring questions and standards cited in the MGF, the Maisha Namba system falls short on mechanisms and practices that translate into meaningful accountability, and a lack of transparency is prevalent throughout all aspects of government implementation.⁴⁶ The system lacks administrative review and a process for correcting recorded data. There is no mechanism for independent oversight and, while judicial oversight can be instituted through a constitutional challenge, this review and remedy is inaccessible to most of the population because of the time and money required for such a legal challenge. Outside of constitutional review, there are no remedies for harm caused to citizens (such as an improper rejection for digital ID) from the system. Real remedies are an even more remote prospect for non-citizens or citizens with undetermined or insecure legal status. 

Correction of Data  

Assuming that corrections to the Maisha Namba database will follow the same legal framework provided in the Births and Deaths Registration Act’s schedule, this procedure for corrections has been ineffective and inaccessible to the vast majority of the population.⁴⁷ Even for simple updates such as name changes, a lawyer is often required to navigate the complex process of changing information recorded in the physical birth register.⁴⁸ This arrangement conflicts with standards and best practice. The UN Department of Economic and Social Affairs’ authoritative guidance on legal frameworks for civil registration and identity management notes that, in an accountable system, local registrars should be able to correct obvious clerical errors and mistakes.⁴⁹ Additionally, fees imposed for correction are at the discretion of the registrar, posing an obvious risk of arbitrariness and disparate burdens for those without the means to pay for corrections to particulars.⁵⁰ There is no further information in the public domain about how corrections will work in the Maisha Namba system but, based on information provided by community paralegals and government officials, there will likely be no changes to this process.⁵¹  

This lack of adequate process, transparency and guidance makes it unacceptably difficult for individuals to alter information within the digital ID system, even to correct mistakes or clerical errors. Often, such errors can create outsized access issues even for essential services like healthcare, when system processes mistakenly flag a misspelled name as a potentially fraudulent record, leaving the affected individual unable to transact.  

Independent Administrative Review and Judicial Oversight 

The Registration of Persons Act and the Births and Deaths Act do not establish or allow for independent review of decisions within the relevant civil registration and identity management agencies. These laws also do not provide for any mechanism for redress in the event of unlawful refusal of registration or services based on incorrect information in a government database or system of records. Based on current published legislation, regulations, rules and policies, the only way to appeal from decisions taken within the operation of the Maisha Namba system is via constitutional review in the judicial system. Challenges such as these are insufficient and impractical for individual redress because they can be quite costly, require many years to complete, and are generally not accessible to most average citizens for these reasons. Additionally, judicial oversight can only be sought where there is proof of a constitutional violation or a statutory violation. For individuals who are denied IDs without any reason for the denial, proof of such a violation might be impossible to obtain.    

 The MGF emphasizes that judicial review must be in line with principles of access to justice, as the foundation of the rule of law. Judicial oversight is only effective if the relevant government agencies respect the rule of law, including by follow the High Court’s decision in the NRF case, which prevented the further implementation of the digital ID system until a comprehensive regulatory framework is adopted to address the privacy and discrimination issues identified in the judgment. There has been a marked lack of enforcement of this decision. One major concern is that the new Maisha Namba system is essentially implementing the NIIMS system, and the government is simply circumventing the High Court’s ruling by bringing the system under a new name. In a pending direct challenge to the Maisha Namba system in the High Court in a petition brought by Haki na Sheria Initiative, the government has admitted as much, by calling the Maisha Namba a “rebrand” of Kenya’s existing identity management systems.⁵²   

The MGF also helpfully calls on implementing governments to ensure that judiciaries are trained in the technological architecture of digital identity systems, and able to weigh the juridical significance of different design models. The petitioners in the NRF case have appealed the High Court’s decision for failing to consider the juridical implications of a centralized biometric ID database – a decision that court left in the hands of the executive authorities and beyond judicial review. 

Access to Legal Advice: Paralegal and Civil Society Support 

Researchers preparing this report interviewed community-based paralegals and the organizations that manage their work on civil registration and identity documentation community empowerment. These groups have extensive experience with existing systems, patterns of exclusion, and practical measures of support to find solutions for disadvantaged clients applying for vital documents in dysfunctional or discriminatory systems. Their work expands access to identity documentation and services and concurrently documents on a systematic basis the barriers to access confronting clients within their communities. 

While the MGF notes the importance of legal and paralegal assistance (free or at low cost) and civil society support, it is silent on the financial burdens these essential services place on community organizations. Moreover, while some Kenyans with acute needs do have the options of paralegal support from civil society organizations thanks to the mobilization of resources and knowledge to provide such services, the lack of transparency over the legal framework for the Maisha Namba system severely limits the support that can be provided even where it is available. The severe limitation of publicly available information undermines any meaningful legal or paralegal assistance, community education, or civil society support.  

Remedies 

There is currently no public information about direct remedies which could be sought by individuals who are harmed by the digital ID system. For example, the published amendments introducing the NIIMS system (ostensibly applicable to Maisha Namba although this has yet to be clarified) do not provide any instructions to appeal a denial of ID.  

Accountability and the rule of law are further frustrated by discrimination under the current civil registration and identity documentation systems which will only be carried forward in the Maisha Namba system. Maisha Namba enrollment, and acquisition of the physical and digital credentials for interacting with the ecosystem, is still dependent on holding a valid existing ID (a national ID or birth certificate). Those who are double registered as Kenyan citizens and refugees or lack Kenyan ID under the current system will be unable to receive a Maisha Namba digital ID, just as they were in the Huduma Namba program. It is estimated that there are at least 40,000 double registered persons in Kenya, despite the efforts by government and civil society to resolve these cases and ensure people’s legal status is correct and secure.⁵³  

Individuals from marginalized communities including those historically associated with borders are subjected to discriminatory vetting. There is no set procedure for resolution of complaints or an appeal mechanism for vetting decisions either under the applicable legislative acts and regulations for civil registration and registration of persons, under the NIIMS system’s operational architecture or published rules,⁵⁴ or under information released to date about the Maisha Namba system’s administration and operational architecture.  

Although the Kenyan government released a policy purporting to abolish vetting for ID documents in April 2024, interviews with local administrative officials and civil society leaders suggest that in practice vetting operations continue without interruption.⁵⁵  

Legal and Regulatory Framework 

The legal and regulatory framework is a critical element in the governance of digital legal identity systems.  

Legal authority for the Maisha Namba system is inadequate, lacks transparency, and negatively impacts marginalized communities. 

A strong, transparent legal foundation for civil registration and national identity documents is crucial to securing human rights.⁵⁶ Based on available information, it is the government’s position that the Maisha Namba system is legally grounded through amendments to already-existing registration laws and regulatory frameworks, specifically the Registration of Persons Act⁵⁷ and the Births and Deaths Registration Act.⁵⁸ The Maisha Namba legal framework is most elaborated in regulations and rules attached to these Acts, several of these being recently adopted without adequate public scrutiny or independent review.⁵⁹   

The Cabinet Secretary for Interior and National Administration (Secretary) has significant discretion under these laws, allowing the Secretary to dictate rules and guidance on ID processes.⁶⁰ Because the bulk of the Maisha Namba system’s foundational legal anchoring takes the form of rules and regulations rather than primary legislation or more detailed  statutory amendments, a wide degree of discretion is built into the digital ID legal framework, allowing for the continuation of discriminatory practices, such as vetting.  

While the schedule to the Births and Deaths Registration Act outlines what information is required for birth and death registration,⁶¹ there is no guidance concerning if or how this information will be integrated into the Maisha Namba digital ID database (“master population register”). Similarly, it is unclear what information will be accessed to confirm a person’s identity when they use their Maisha Namba card to obtain certain government services like medical care or welfare benefits or transact with participating private sector entities.  

The wide discretion allowed to registrars under the Births and Deaths Act and Registration Act has long been criticized as a root cause of arbitrary practices, discrimination, and marginalization of minority communities, and the legislative amendments, regulations, and rules under which the Maisha Namba system will be implemented do not remedy this discretion.  

Additionally, the amendments to these laws do not remedy preexisting barriers to registration and, in fact, exacerbate problems of access, including significantly increased fees attached to the most recent update to the Births and Deaths Act (2024).⁶² In 2016, the rate of births and deaths which took place in public medical institutions was roughly 60% and 20% respectively.⁶³ Prohibitive costs and difficulties accessing registration centers account for a high variance in birth registration.⁶⁴ These systems focus on penalizing individuals for lack of registration or late registration, which has been shown to disincentivize registration.⁶⁵ While the “MOVE-IT” Project and other mobile registration efforts continue, coverage of registration is still lacking, particularly in disadvantaged communities and in rural areas outside of major cities.⁶⁶  

To date the Kenyan government has not established a strong and comprehensive legal foundation for the implementation of the Maisha Namba covering its operation in practice and maintenance throughout the program’s life cycle. These are fundamental elements in the MGF framework, drawing on ample international standards and best practices regarding the long-term, safe and inclusive operation of digital ID systems. The current regulations gazetted regarding the Maisha Namba system do not provide for legal safeguards or parameters detailing the implementation of the eCitizen app and portal, the universal personal identifier (UPI), and other aspects of the Maisha Namba system. The laws, regulations, and sub-regulatory rules elaborated so far only mention the elements of the system – for example, the updated Births and Deaths Registration Act rule now mention the UPI and obliges registrars to create this record – without specifying any further details as to their operational function, risks, and legal or regulatory mitigations of those risks.⁶⁷ 

This lack of accountability in implementation raises significant concerns that the NIIMS regulatory framework, which has previously been ruled unconstitutional by the Kenyan High Court, is being used to implement the Maisha Namba system in circumvention of the High Court’s ruling. This conclusion is further supported by testimony gathered in March and April 2024 that the government had begun handing out Maisha Namba cards when citizens apply for ID, without having the proper tech infrastructure or budget to implement the Maisha Namba system, instead relying on existing technology and systems.⁶⁸ 

The Maisha Namba system, while allegedly doing away with vetting,⁶⁹ does not legally clarify or remove discretion of registrars to institute vetting procedures, or the anchoring of vetting within Kenya’s security laws and apparatus.⁷⁰ Vetting procedures are a discriminatory practice applied to certain Kenyans based on their ethnicity, religion, geographic location, nomadic lifestyle, and more.⁷¹ Vetting can be applied at the discretion of the registrar for something as simple as having a Muslim name.⁷² This process requires members of marginalized communities to supply additional evidence of citizenship, even in cases where they have presented the necessary documents to obtain an ID (birth certificates and parents’ IDs).⁷³ Vetting causes delays and often unjust denials of IDs for certain targeted groups.⁷⁴  

Because the legal framework for the Maisha Namba system relies on the existing discretion under the Births and Deaths Act and Registration of Persons Act, vetting procedures will and have continued unchecked,⁷⁵ despite claims by the government that digital ID will stop these discriminatory practices.⁷⁶ In fact, a government registrar with the National Registration Bureau noted that vetting practices have continued in 2024 and have been used to issue Maisha Namba cards.⁷⁷ This is directly contrary to the government’s claims that the Maisha Namba system will eliminate the need for vetting. Civil society groups have sounded a note of caution regarding the Ruto administration’s new guidelines for vetting, highlighting that the new registration procedures outlined in the guidelines could amount to nothing more than a “rebrand” of existing discriminatory processes.⁷⁸ In relegating such foundational issues to secondary rules and guidelines, while still omitting crucial details concerning their practical implementation, the government departments building the Maisha Namba system diverge significantly from the governance recommendations of the MGF. 

Value of Existing IDs 

Registration requirements under the Maisha Namba system leave the probative value of pre-existing identity documents unclear. The Maisha Namba system registration requires a physical birth certificate when applying for your first ID at eighteen or when applying for replacements.⁷⁹ This is identical to the NIIMS system which required a “primary foundational registration document” noted as a national ID card for those over 18 or a birth certificate for minors.⁸⁰ Under the NIIMS system, secondary ID cards were also captured (driver’s licenses, SS cards, health insurance cards, educational certificates) and it is unclear what value these documents were given and why this information was collected for the digital ID system.⁸¹  

Proof of identity is also required for many government programs and private sector services.⁸² Because registration for the Maisha Namba system requires some primary documentation, the system will not remedy existing inequal access to such identification documents. Persons who are already unable to get this documentation under the traditional ID system will be excluded from the Maisha Namba system. Those who have been denied IDs for years will not be able to obtain a UPI number which is integral to the Maisha Namba system. 

Prior to the widespread implementation and requirement of digital ID, the government must prioritize and expedite the processing of documentation for Kenyan adults and children who have been unable to obtain IDs previously. The government must invest in improving access to registration centers in underserved areas.  

Access Issues 

The Maisha Namba system does not address access issues. Mobile registration is only performed a few times a year and does not help register those who must go through the discriminatory “vetting” process.⁸³ Many Kenyans are unable to travel to registration centers or stay in the area throughout the vetting procedures.⁸⁴ Others face difficulties in photocopying documents and requesting required documents from schools.⁸⁵ Even in urban areas, there are often not enough registration officers to process applications and, in the past, there has been an average wait of at least six months for an ID.⁸⁶ While the government claims that the digital ID system will do away with vetting, there is no legal framework to support such a change.  

The MGF stresses that non-public guidance should be restricted to purely administrative questions that are not relevant to those enrolling in the system. The public legal framework is minimal and does not adequately allow Kenyan citizens and residents to understand their rights or obligations under the new Maisha Namba system. Arbitrary decision-making left to the discretion of individual registrars will only continue under this system if significant reforms to the legal and regulatory framework are not undertaken.  

Connections to other systems 

The Maisha Namba ecosystem’s relationship to the prior registration systems and co-existing registration systems is equally unclear and not properly laid out in the statutory amendments, regulations, and rules adopted during the last several years. It is not confirmed exactly how the traditional civil registration system will continue to play a role in the Maisha Namba system, for instance, although the recent rules for birth registration require registrars to create and record individual UPIs and discharge them upon the death of registered individuals.   

Additionally, the lack of information regarding the technical structure of the system raises concerns that the NIIMS system, which was previously ruled unconstitutional, will be used to implement the Maisha Namba system, or that data collected to be stored in the NIIMS database will be used in some way, with other government records, without the consent of the data subjects. Even more concerning is the fact that the NIIMS mass enrollment data is simply not accounted for and its storage conditions, reproduction, use and other processing operations from the point of collection until today are unknown, according to information available from public sources and experts consulted in preparing this report. The continued use of the NIIMS system and enrollment data in any way raises constitutional issues as, thus far, no adequate legal or policy changes have been made public to demonstrate compliance with the court’s 2020 ruling.  

Based on the public information about the legacy NIIMS system and limited government statements concerning the Maisha Namba, the system will at minimum be tied to existing public benefits systems, the school registration system (NEMIS), and many private sector services. Enrollment and use of the system for these purposes is mandatory – an issue that limits the user value of the system overall, as explored in subsequent sections. An inability to obtain digital ID effectively cuts off Kenyans from a variety of social welfare programs, education, and other services.  

The public benefits system including the national health insurance and disability benefits will likely be tied into the digital ID system. Without a digital ID, Kenyans cannot access the National Health Insurance Fund which covers the cost of healthcare.⁸⁷ Those without digital ID are also barred from accessing social support programs for orphans, vulnerable children, the sick, or the aged.⁸⁸  

The Kenyan school registration system (NEMIS) requires parents to present their IDs along with their children’s birth certificates to register for schooling.⁸⁹ The NEMIS system has been further integrated into the Maisha Namba system by requiring a UPI to register for national examinations, require to progress in the educational system and graduate.⁹⁰ Additionally, many Kenyan students without IDs are forced to forgo formal education because they cannot access financial support or sit for the necessary exams.⁹¹ 

Private sector services are also tied to the digital ID program.⁹² Kenyans without a national ID tied to the Huduma (and now Maisha) Namba system are currently unable to open a bank account, obtain a SIM card for a model phone, or own any property in their name.⁹³ They are also unable to participate in Mpesa, the digital money transfer system, which is widely used across the country.⁹⁴ The inability to access cash transfers on mobile phones also impacts an individual’s ability to access social benefits. For example, those without digital ID were unable to access program for COVID-19 supplementary assistance because this assistance required a cash transfer on a mobile phone.⁹⁵  

Being unable to obtain valid ID, digital or otherwise, negatively impacts all aspects of an individual’s life.  

Impact Assessments 

The MGF also recommends conducting both a Data Protection Impact Assessment and a Human Rights Impact Assessment which will illuminate areas where improvements to the Maisha Namba system are required. The Data Protection Act of 2019, Article 31, covers data protection impact assessments, tracking closely to Article 35, GDPR. A DPIA of the Maisha Namba system was produced in response to litigation, however the document has not been shared with the public. DPIAs examining large and transformative public infrastructure projects like Maisha Namba should be made public for review and should draw on extensive public participation to inform the assessments in the first place.⁹⁶ Civil society organizations in Kenya have continued to advocate for DPIAs and HRIAs, although the latter is not strictly provided for by national law like DPIAs.⁹⁷  

Recommendations 

Legislative reforms should focus on affirmative action measures to issue documents to all Kenyans who have been excluded from receiving identity documents through a comprehensive legal framework. Additionally, this framework must provide transparency and alternatives for those who have been deterred in accessing ID by these discriminatory systems, who have poor biometrics, or who are otherwise unable or unwilling to enroll.  

Data Protection and Privacy  

Data protection and privacy are essential elements of the governance framework. The framework elements under this heading relate to the components of the system that ensure sensitive personal data is protected and that individual privacy is maintained. This is particularly important given the sensitive information that digital identity systems collect and manage, the potential for harm through their misuse, and the risk of data breaches.  

Any digital ID system in Kenya, including the Maisha Namba scheme, must comply with current data protection laws and principles, and be mindful of how those principles specifically apply to marginalized groups in practice. The Data Protection Act, adopted in 2019, governs privacy law in Kenya.⁹⁸ The law borrows from privacy laws in other jurisdictions, notably the EU’s GDPR, but there are some key differences.⁹⁹ For example, the GDPR requires recordkeeping of all data processing activity, which helps maintain data transparency.¹⁰⁰ Kenya’s Data Protection Act does not have a comparable provision but allows the Data Protection Commissioner to access records relevant to an investigation, with legal consequences for noncompliance.¹⁰¹  

However, a key weakness is that the Kenyan Data Protection Act exempts processing personal data that is “necessary for national security or public interest” from compliance with the Act’s requirements (the “national security exception”).¹⁰²  Because identity documents fall into this category, all processing related to the Maisha Namba is not legally protected under the Act the way other forms of data processing would be.¹⁰³ This raises grave concerns about government and private actors’ access to data through the eCitizen portal and master population register database.¹⁰⁴ The lack of transparency around such processing means that accountability or remedial mechanisms are minimal to nonexistent. This lack of protection could also make the Maisha Namba itself more vulnerable to security threats without any possibility of independent security auditing, even as access to a Maisha Namba data by a bad actor could have permanent consequences and compromise individual identity on a mass scale.¹⁰⁵ 

Another important area of international data protection is the right to access data and information about data processing within digital records systems. The Kenya Data Protection Act’s right of access for individuals only enables “access [to a data subject’s] personal data in custody of the data controller or data process;” as previously mentioned, Maisha Namba is also exempt from this provision.¹⁰⁶ The 2021 Data Protection General Regulations (“2021 Regulations”) provide data subjects with the right to access information as to their data’s categorization, recipients or categories of recipients, storage period and criterion for that period, and information on the source of collection.¹⁰⁷ Although a right to access data itself and information about it is provided, there is no right to access records of processing activity logs.¹⁰⁸ Even if the Act were amended to apply to Maisha Namba, this provision would still prevent individuals from accessing their data processing records. 

Case Studies: Other Countries’ Digital ID Systems 

As part of its recent efforts to design and roll out the Maisha Namba system, the Kenyan government visited Pakistan to examine the effects of its digital ID system, and also worked with the Ugandan government.¹⁰⁹ The Pakistani digital ID card is linked to voting, government benefits, schools, healthcare, banking, and job applications.¹¹⁰ Various problems have arisen with these IDs, affecting marginalized groups like women and children.¹¹¹ The database is also vulnerable to cyberattacks and data breaches.¹¹² The Ugandan digital ID links the ID to government benefits, and the government has announced plans to add biometrics to the identity card like palm prints, blood type, and eye scans.¹¹³ The Ugandan ID’s link to government infrastructure has also been challenged on human rights grounds, and has posed access problems for marginalized groups.¹¹⁴ 

The Estonian Digital ID system is another useful case study in implementing digital ID. Estonia is a member state of the EU, so its e-ID must comply with the GDPR. The e-ID operates on its own blockchain for privacy and security.¹¹⁵ State registries are also encoded on this same blockchain, including “healthcare, property, business, and succession, along with the digital court system and the official state announcements system.”¹¹⁶ The blockchain provides a ledger of all system activity, as well as a data tracker tool that users can access for increased data transparency.¹¹⁷ Estonian citizens may register for the e-ID regardless of gender, race, or socioeconomic status, and an “e-residency” program is available for noncitizens to do business in Estonia using the e-ID program.¹¹⁸ 

However, the Estonian e-ID is not an ideal digital identity system. The e-ID is part of a centralized government-based system, which means that the government exerts significant control over the system and all the data held on it.¹¹⁹ The Kenyan government’s ability to access the sensitive data in NIIMS, Maisha Namba, and other similarly centralized systems is deeply concerning for marginalized groups, who already experience unfair treatment in government systems; giving it more access is inadvisable given the known effects on marginalized groups.¹²⁰ More concerning is that although individual data subjects have data subject access rights under Kenyan law, recordkeeping is not legally mandated for processing.¹²¹ This makes the implementation of data tracker and activity ledgers—key accountability tools in the Estonian system—less likely in the Maisha Namba system. 

Many countries have moved away from using Unique Personal Identifiers like the Maisha Namba because of the risks they pose to user privacy.¹²² These countries view the centralization of identity and transaction data threaded into a unique personal identifier as an unnecessary privacy compromise for individuals, even if it increases interoperability between government systems and agencies.¹²³ Community members who work with Haki na Sheria Initiative have expressed many concerns about the privacy of their data and how the Unique Personal Identifier would work in the Maisha system.¹²⁴ 

Recommendations 

Although another legal challenge to the Unique Personal Identifier on privacy grounds is currently underway, the ultimate outcome in the case may be months or years away.¹²⁵ Decentralization of databases for the biometric and other sensitive data underpinning Maisha Namba would prevent government abuses, improve security and improve access to the system.¹²⁶ Similar decentralization of the e-Citizen payment system would prevent abuse of mass data collection and protect sensitive payment information stored in or flowing through the platform. Decentralization would also reduce damage in case of a data breach, because one breach of the Maisha Namba system could lead to biometric information, which cannot be changed, being permanently compromised.¹²⁷ Decentralization could also be configured to allow individuals who cannot access one system because of missing data like a birth certificate or existing ID card to access other systems.¹²⁸ This could provide a solution for individuals who do not have a birth certificate but need to access tax and student loan systems, for example. Decentralization could also provide protection for marginalized groups against discriminatory uses of government authority, because sensitive data would be more difficult to combine into user profiles. 

Legal reform to the Data Protection Act of 2019 would also protect people’s data in the system. Removing the national security exception would provide more protections and accountability for people whose data is processed by Maisha Namba, eCitizen and NIIMS would have legal recourse for illegal and unfair processing activity. Stronger legal protections for recordkeeping and access to data processing records would also make data processing practices in the Maisha Namba system more transparent. Individual rights to access are an important first step to data justice, but detailed recordkeeping for purposes of that access is equally important. Estonia’s ledger system provides detailed records of data processing for digital ID users. Similar tracking systems in Kenya would provide transparency of data processing, including data disclosures between agencies and with private sector third parties, and data use and reuse within the system. This would preserve the right to access information and provide accountability for discrimination in data processing. One way to build tracking and accountability processes could be implementing blockchain technology like that used in Estonia as a processing tracking mechanism.¹²⁹ If used in the Maisha Namba system, similar technology could provide better security for sensitive data and better transparency. This could ultimately protect data subject rights for marginalized groups better than the current system. 

User Value 

This element is critically important to ensuring that digital identity systems contribute to development that is inclusive and safe, and it advances progress towards the sustainable development goals.  

The Maisha Namba digital ID system’s user value should be evaluated using a combination of current consumer value metrics, as well as elements a “human rights by design” approach to digital public infrastructure technologies. These frameworks help show the balance of benefits and negative aspects of the system. This balance should then be used to determine what aspects of Maisha Namba and digital ID more broadly generate value for marginalized groups in Kenya, and which aspects are detrimental to users from marginalized groups. 

Frameworks: User Value and Human Rights by Design 

User value, or consumer value, of a product measures the value of the product to those who use it.¹³⁰ There are many different ways to evaluate user value, but this report will use a multi-level approach from the Harvard Business Review and “User Research Toolbox” developed by the Trustworthy Digital Infrastructure for Identity Systems Alan Turing project.¹³¹ In the Harvard Business Review schematic, there are four tiers of consumer value: functional, emotional, life-changing, and self-transcendence.¹³² The User Research Toolbox, meanwhile, uses perceptions of the state and the perceived usefulness and ease of use of a digital ID to measure its user value.¹³³ 

Human rights by design calls for an approach that centers human rights in product design.¹³⁴ This means that the “default” design of products should account for human rights issues like discrimination and statelessness.¹³⁵ This is meant to build on the concept of “privacy by design,” which encourages implementation of measures to, for example, prevent the nonconsensual sharing of information, limit the operating authority of the controller to view and deanonymize data, and ensure public transparency.¹³⁶  

Human rights by design focuses on private enterprise and the tech industry as agents of change in human-rights-conscious technology.¹³⁷ It is important to view any voluntary enterprise in human rights promotion with a critical eye. Because Maisha Namba is built and maintained by contractors, it is vital, but not in itself sufficient, that these contractors take a human rights by design approach to its construction and anticipate and address human rights concerns before they arise. This means taking special care to ensure, for example, that marginalized groups’ data is anonymized (especially to government controllers), that the identity system doesn’t “phone home” to a central point (creating a mass surveillance risk), that all data are adequately protected in transit and at rest, and that how the data are used is made clear to the public. This also means considering other options besides a digital ID for populations who do not have regular internet access, or otherwise cut off from digital public infrastructure. 

Analysis and Recommendations: User Value 

User value will be analyzed for the purposes of this report as the Maisha Namba system’s value to marginalized groups in Kenya.¹³⁸ To this end, some of the “dimensions” of consumer value have been adjusted to better fit the needs of marginalized groups in using the Maisha Namba system. Although the system is still new and its future implementation is uncertain, functional problems have already revealed themselves, and they along with other problems must be addressed as soon as possible. 

Functional elements of a product are those that add value when using the product.¹³⁹ Maisha Namba could provide functional value through reduced risk of data loss or identity theft, increased efficiency in processing ID, and reduced variability in bureaucratic processing steps.¹⁴⁰ However, the digital nature of the Maisha Namba digital ID only benefits Kenya’s “tech elite” who have access to the internet, which is only 40% of the population.¹⁴¹ Many residents of Garissa County do not have access to internet, regular electricity, or water, and nomadic populations cannot connect to a stable digital network.¹⁴² Community paralegals working on access to identity documentation with Nubians and Kenyan Somali communities estimated that 60% of their clients don’t have smart phones.¹⁴³ Maisha Namba is “mandatory,” but its implementation leaves most of the country—possibly 60% or more—uncertain about how to access and use digital ID, and about how to access other government systems without it.¹⁴⁴ The functioning of the product for groups that are not part of the “tech elite” is therefore low, because there is minimal effort to make it available to them outside of third-party locations like cyber cafes, which pose their own privacy risks.¹⁴⁵ Having to visit a cyber cafe means sharing personal information and data with employees and the cafe systems, putting those who need cyber cafes to access Maisha Namba at increased risk of privacy harms.¹⁴⁶ 

Maisha Namba also poses problems with access to the infrastructure needed to sign up, because marginalized communities already have limited access to the current registration system.¹⁴⁷ Many formerly stateless individuals who have been issued new ID documents are unable to use those IDs to access e-Citizen because their serial numbers had not been updated in Kenya’s Integrated Population Registration Database System (IPRS).¹⁴⁸ This is a serious loss of system functionality for populations who need to access government services the most. Additionally, failures in the Maisha Namba system could lead to cascading failures to obtain needed government benefits that are tied to the system, leaving the communities who need those benefits most at increased risk of losing them.¹⁴⁹ 

The emotional dimension of user value is also an important consideration in the Maisha Namba system. Failure to be able to register has a severe emotional impact on marginalized populations, because it causes frustration, loss of hope, and fear of losing access to other necessary government systems like the education and taxation ministries due to loss of access to the eCitizen payment system. Many individuals from Garissa County expressed frustration and sadness at past and current difficulties and delays they have experienced in registering for ID and are gravely concerned about experiencing these feelings again with Maisha Namba.¹⁵⁰ 

A final type of possible “user value” of Maisha Namba might be framed as large-scale social impact. Because the legal challenges to the Maisha Namba system have, as of the time of writing, not been resolved, it is important to reframe efforts to improve the system as ones working toward justice. The User Research Toolbox’s analysis of how to adapt digital ID to user expectations provides a useful framework for improving the Maisha Namba system for marginalized users, because it relies on user confidence in a digital ID system.¹⁵¹ Currently, community members and paralegals express low confidence in the state’s ability to grant them a Maisha Namba ID in a timely and organized manner based on past experiences.¹⁵² They also expressed concern about the usefulness of digital ID in an area where electrification is still not complete, and a majority of the population does not own a smartphone.¹⁵³ Implementing the promised offices and hotlines, decentralizing e-Citizen and NIIMS so that failure to access one system does not turn into failure to access all systems, and providing a non-digital alternative would all improve user confidence. Better government transparency as to the data processed by the system, who is building the infrastructure, and who is funding the project would also improve user confidence through increased transparency.¹⁵⁴ 

Analysis and Recommendations: Human Rights by Design 

Human rights by design should also be incorporated into the digital ID system as it moves further along in the development process. This means designing the system to prevent marginalization, statelessness, and other human rights abuses.¹⁵⁵ It also means thinking about various questions in relation to the system.¹⁵⁶ Architects of Maisha Namba should consider how to implement human rights concepts into the context of their data processing activities and the architecture of the system.¹⁵⁷ They should also determine how to involve marginalized communities in the ongoing development process for digital ID.¹⁵⁸ They should consider how to address the risk of discriminatory outcomes from digital processes, like discrimination in algorithmic decisions and failures of the tech infrastructure in reaching marginalized populations.¹⁵⁹ 

A final, very important question to ask is how to address new risks to human rights that arise because of the new Maisha Namba technology.¹⁶⁰ Answering this question demands creative thinking, and a forward-looking mindset. Double registration and inability to register are existing problems in marginalized communities; how does Maisha Namba make these problems worse?¹⁶¹ In the short term, better continuity between the current birth registration system and Maisha Namba registration would assist with better access, but it is also important to minimize the data entering the system in the case of a breach, which could compromise irreplaceable data. It is important to anonymize demographic information so that it cannot be used against marginalized groups—if such data is to be collected at all. What other issues arise when tying digital identification and benefits to a smartphone? The Maisha Namba will leave the 60% of the country without internet access uncertain as to whether they can access government benefits, which they also need to access much more urgently than the “tech elite” who benefit most from the system.¹⁶² This cuts off groups that already experience limited digital access from government services and financing, which are vitally important to their survival. All of these considerations are crucial in the development of the Maisha Namba infrastructure and must be addressed in the ongoing roll-out process. 

Procurement and Anti-Corruption 

Transparency and accountable procurement procedures, and effective measures to counter corruption are important elements of the model governance framework for digital legal identity. 

The MGF highlights the direct connection between procurement and corruption.¹⁶³ Procurement is the process by which the government acquires goods or services and can be a breeding ground for corruption if not conducted in a transparent manner. Transparent procurement procedures not only deter corruption, but also ensure that the government adheres to current standards, particularly related to digital public infrastructure like a national digital identity system.¹⁶⁴ Ensuring transparent procurement procedures is especially important when there are pre-existing allegations of government corruption.¹⁶⁵  

Article 227 of the Kenyan Constitution states that, when the government enters a contract for goods or services, the government must do so in a manner that is “fair, equitable, transparent, competitive and cost-effective.”¹⁶⁶ The Kenyan government’s procurement of the component hardware and software, and other goods and services required to build and operate the Maisha Namba system has lacked sufficient transparency.  

Procurement and anti-corruption measures are important to safeguard marginalized communities from becoming further sidelined and excluded with the implementation of Maisha Namba. When there is no transparency in how the government contracts with third party vendors, or even the identity of those vendors, it opens the door for corruption. Private companies may feel incentivized to offer favors or provide monetary contributions to government officials because they believe they can secure contracts for their services from these contributions. This could lead to government officials failing to undergo careful consideration of other potential companies to contract with, as they are persuaded by the company that offers the biggest contribution or favor.  

The Kenyan government has yet to publicize the vendors responsible for the creation and implementation of the Maisha Namba system. This lack of transparency raises significant questions about data access and the potential for breaches in data security, among other risk areas. If a breach were to occur, who would gain access to this sensitive data, including biometric data and transactional metadata? These are all important questions to which the public deserves answers, especially considering the personal information and significant public funds at stake.  

 The lack of transparency in public procurement for the Maisha Namba system (and its antecedents) is compounded by existing allegations of government corruption. The Africa Centre for Open Governance (AfriCOG), a Kenyan anti-corruption NGO, has highlighted the pervasive issue of corruption in Kenya in the flagship State of the Nation report.¹⁶⁷ AfriCOG’s report takes note of Kenya’s consistent low ranking in the Transparency International (TI) Corruption Perceptions Index.¹⁶⁸ Since the TI Corruption Perceptions Index first launched in 1995, Kenya has typically been in the bottom half of the countries surveyed.¹⁶⁹ The AfriCOG report also emphasizes that despite Kenya occasionally showing improvement in certain indicators, the country often regresses in its anti-corruption efforts.¹⁷⁰ AfriCOG argues that the Kenyan government tends to prioritize the appearance of reform over making actual substantive changes.¹⁷¹  

Recommendations  

To effectively address concerns surrounding procurement transparency, the Kenyan government can adopt comprehensive strategies aimed at increasing government accountability and fostering trust with the public.  

One key approach the Kenyan government could take is to implement open bidding processes with private companies for government contracts. By allowing different companies to compete in an open and transparent manner for government contracts, the Kenyan government can help reduce the potential for corruption through favoritism.  

Additionally, it is important for the government to publicly disclose tender documents and procurement contracts, especially when the procurement will significantly impact the public. Public disclosure of these procurement records and governmental contracts would help to promote transparency and instill the public’s confidence in the government’s commitment to fair and ethical procurement practices.  

Participation and Access to Information 

The participation and transparency framework element assesses whether digital legal identity systems are inclusive and represent user interests, and whether the impact of identity systems is evaluated and data about its functioning are publicly accessible. 

Public participation and access to information are invariably linked. Without adequate access to information, community members cannot genuinely participate in voicing their opinions on matters of public concern. At the same time, if community members are prevented from genuinely participating in governmental matters, they will often face difficulty in understanding the whole picture of the matter at hand. Community members in Kenya deserve to have ample means to participate in the rollout of Maisha Namba and be provided with sufficient information regarding the details of the system, including essential information about the risks posed by its technical design and whether those risks are adequately mitigated.  

The MGF’s participation and access to information element sets forth how to determine whether a digital identity system is inclusive and represents individual interests, as well as if information relating to how the system functions is sufficiently accessible to the public.¹⁷² The government can make efforts to ensure the inclusivity of a digital identity system by actively engaging and communicating with the public, providing information on the system’s design and functionality, and taking individual comments and concerns into account throughout the implementation process.¹⁷³ 

Public Participation 

Public participation is one of Kenya’s national values and principles of governance (Kenyan Constitution, Article 10).¹⁷⁴ Upholding public participation as a national value means that the public has a right to voice their opinions and have their opinions be heard and taken into consideration regarding important governmental matters. In addition, Article 56 of the Kenyan Constitution sets forth that the government must establish affirmative action programs to ensure that marginalized communities can participate in governance.¹⁷⁵ To uphold the national values of the Kenyan Constitution, individuals, specifically those of marginalized communities in Kenya, should be provided with ample information on Maisha Namba and sufficient time to prepare and submit responses and feedback on the digital identity system.  

The High Court of Kenya, in the 2014 case of Mui Coal Basin Local Community & 15 ors v. Permanent Secretary & 17 ors, set forth how to analyze the adequacy of public participation efforts made by the government.¹⁷⁶ According to the High Court, any public participation program must provide the public with access to relevant information concerning the matter and provide a platform for individuals to offer their opinions, concerns, and expertise regarding exclusion.¹⁷⁷ The method and degree of public participation can vary depending on the matter at hand and the significance of its potential impact on the public.¹⁷⁸ Regardless of the method and degree, all public participation must be recorded and well-documented.¹⁷⁹  

With the implementation of Maisha Namba, the Kenyan government has made efforts to garner public participation, but it is not clear how meaningful these efforts were. It is also not clear if these efforts were recorded and well-documented as required by the High Court of Kenya but kept private or if these efforts were not documented. Principal Secretary Bitok publicly stated that the Ministry had taken part in more than 800 public engagements regarding the system’s rollout.¹⁸⁰ It is not evident where these engagements took place, who was given notice that these engagements would be happening, or if there was any notice provided at all beforehand.  

Members of civil society groups expressed concern that public officials responsible for public participation unhelpfully blurred the lines between public awareness or education campaigns and public participation, which entails real input and responsive government.¹⁸¹ The Kenyan government did provide individuals with an opportunity to comment and provide feedback on the proposed implementation of Maisha Namba, but only granted six days to do so.¹⁸² This short timeframe for public participation has been viewed as a means for the government to tick off boxes, rather than actually trying to garner feedback.¹⁸³ Members of the public believe that there was no real involvement of the community or CSOs in the rollout of Maisha Namba.¹⁸⁴  

Civil society groups also observed that targeted efforts to engage with them and ostensibly to gather expertise and diverse perspectives on the rollout of the system actually served to sanitize the government’s intentions and to manage the role of civil society in critical discourse, allowing the government to suggest without their consent that it had the blessing of participating civil society.¹⁸⁵ The MGF fails to reference the risk of instrumentalizing or manipulating civil society involvement in its guidance on public participation, although it highlights the importance of civil society involvement in general as a means of reducing exclusionary risks and bad design. Importantly, the MGF promotes the publication of consultation results and civil society input, so that claims about the outcomes of public participation can be audited independently. 

Public participation is vital for the implementation and continued development of Maisha Namba because it can help to improve the design and functionality of the system, as well as foster inclusivity within Kenya. The individuals who will be using Maisha Namba every day will be able to offer a fresh perspective on how the system is designed to work and how it could be made better, provided that these individuals are given accurate and ample facts related to the system. It is also important that public participation continues after the initial implementation of Maisha Namba, so the system can continually be developed and improved upon. Genuine public participation efforts, specifically maintaining an open dialogue, can also foster inclusivity. Genuine public participation would mean that individuals can voice their opinions and concerns regarding Maisha Namba and have their opinions heard and taken into consideration by the government.  

Recommendations 

There are multiple steps that the Kenyan government can take to provide effective and meaningful public participation. Public engagements should continue to take place with ample advanced notice provided to the public.  

The Kenyan government should also make efforts to specifically include marginalized communities within their engagements, ensuring that these marginalized communities are provided with the same level of information and dialogue as other communities within Kenya. This means hosting engagements at a variety of locations, to include individuals living in more rural areas. In conjunction, the Kenyan government can also make efforts to involve community service organizations. Community-based organizations have already built trust with community members, so they would be able to appropriately interpret and disseminate information regarding Maisha Namba and gather honest feedback. 

 It is also important, when seeking feedback on Maisha Namba, that the government set up multiple channels for individuals to use, including both online and offline channels. Individuals should also be provided with ample time to provide feedback. The government could seek input from community members to determine the sufficient period needed for feedback.  

After receiving feedback, the government should then publicize how individuals’ comments were taken into consideration to demonstrate that the public participation efforts were in fact meaningful.  

Access to Information 

 Article 35 of the Kenya Constitution establishes that every citizen has the right to access information related to government actions and that the government “shall publish and publicize any important information affecting the nation”.¹⁸⁶ The implementation of Maisha Namba will affect the lives of everyone living in Kenya. The public should be informed of pertinent information regarding Maisha Namba. At a minimum, the public should be informed of the Maisha Namba system’s design, purpose, and potential risks to their rights.  

Although Kenya has a right to information law in place, its implementation is inadequate. Maisha Namba will affect the lives of every individual living in Kenya, yet information regarding Maisha Namba has not been proactively published within Kenya. With the implementation of Maisha Namba, Principal Secretary Bitok publicly stated that the government had printed over 100,000 informational booklets, which covered frequently asked questions regarding the system.¹⁸⁷ It is not clear how these informational booklets were disseminated to communities or who was provided access to them. No further information was provided regarding the format of the booklets, whether there were translations available and in which languages, or how the information was presented within the booklet to readers. The Maisha Namba system has been advertised on television, but these broadcasts have done little to inform the public of what the system entails.¹⁸⁸ The Kenyan government has not publicized the format and design of the Maisha Card, a key component of the Maisha Namba system.¹⁸⁹ All that was made public were the names of the key elements of the system itself without any explanation of what would make up these elements.¹⁹⁰  

A relevant comparison can be made to Sri Lanka’s implementation of right to information laws. Since Sri Lanka established an Information Commission, there has been a “positive trend of information release” within the country.¹⁹¹ “Of 84% of its 1,177 orders, the Commission has ruled in favor of disclosure of information, with 74% being granted fully.”¹⁹² With the Information Commission granting most RTI requests, there has been heightened transparency regarding government projects.¹⁹³ 

Recommendations 

For the implementation of Maisha Namba to be successful, the public needs to be made aware of its significance. This entails publicizing comprehensive, clear information about the design and governance of the system. It is also important that the public is provided with a clear statement from the Kenyan government on which aspects of the Maisha Namba ecosystem are mandatory.  

Information relating to Maisha Namba should be made available and accessible to the public in ways that foster inclusivity within Kenya. Efforts to make the information more accessible can include creating a public, offline portal for individuals without internet access to view and translating the information into multiple languages spoken across the country. It is also important that this information is presented in plain language, so everyone reading it can easily understand and digest the information. Digital ID systems come with many technological terms and acronyms, so it is vital that this information is presented in a way that, while accurate, does not employ overly technical terminology that inhibits the non-technical reader from comprehending it.