The bill is due for public participation today, Wednesday 31 July from 9 am to 1 pm at at the Kenya School of Government, Lower Kabete campus, off Lower Kabete Road.
The draft bill can be found here, and details on to send views to government can be found here and here.
This is my statement.
1. MANDATORY STATUS OF HUDUMA NUMBER
a. The stated purpose of the Huduma Bill, which is “to promote efficient delivery of services,” is contradictory, because access to health and education are inalienable human rights, both under the United Nations Charter for Human Rights and under the Bill of Rights in the Constitution of Kenya (2010). Therefore, the respect of these rights cannot be made conditional upon bearing a document of the state.
2. UNIQUE STATUS OF HUDUMA NUMBER
The inflexibility of the proposed Huduma Number as a unique and personal identification is philosophically morbid and disturbing for the following reasons:
a. It reduces human beings to the property of the state and denies identities of human beings outside the purview of the state.
b. Huduma Number removes the option of the passport as an alternative document of national identity.
c. Huduma number denies the citizens their cultural, community, faith and other social rights by denying them the ability to use those identities in social transactions, which essentially means that the bill proposes to render humanity subordinate to the state.
Humanity cannot be subordinate to the state which is the creation of human beings. Indeed, the Constitution stipulates that the people are sovereign.
3. PERMANENT AND EXCLUSIVE CLAUSES
The Huduma Number becomes a literal slave law because it automatically punishes all human beings resident in Kenya for not having the number, and yet does not allow an exit clause or change of identity, which should be a right of human beings under the guidance of provided laws. The bill as it is currently framed denies the human fallibility of state systems and state officers in the collection and storage of data, and ties citizens lives down to the vagaries of the state. The bill thus turns the Kenyan republic into an open-air prison.
4. NIIMS DATABASE AND THE VIOLATION OF THE RIGHT TO PRIVACY
An integrated identity management system violates the citizens’ rights to privacy because it allows all government agencies to have access to personal data of citizens. Individual citizens cannot possibly be aware of, or track, all the members of government agencies who have access to individual citizens’ data. The number of people with access to a single data base increases vulnerability of data being modified by one government agency without another agency knowing.
5. STATE OVERREACH AND MICRO-MANAGEMENT
The writing of identity requirements in different sectors of the economy is government overreach and state micromanagement. Details on how citizens can register for a myriad of commercial services should be left to the individual institutions. Requirements on private transactions such as in the financial markets, opening bank accounts and electricity connections should be left to the individual institutions to determine and enforce. It is not the role of the national government to take care of private entities.
Also, no transactional data should be part of a national identity, because it collapses our humanity with the market and money.
6. PUNITIVE MEASURES
The mandatory requirement for Huduma Number and the punitive penalties attached, especially to the transaction without a Huduma number, and the failure to register a birth or death (with fines of 1 million, 1 million and 2 million respectively), essentially reduce the humanity of the people to becoming property of the state. Life and death are an intrinsic part of human dignity, and failure to report them should not be punishable by law. In reducing human beings to the property of the state, the Huduma Bill violates the Bill of Rights which stipulates that “the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State.”
Provision of identity documents should be a service rendered to citizens. If people are found to be in need of these documents, it is the duty of government to provide them, not to punish people for not receiving them.
7. LACK OF PROTECTION OF CITIZENS FROM VIOLATIONS OF PRIVACY BY THE STATE AND COMMERCIAL ENTITIES
While the Bill is detailed in penalties for citizens for various infractions of the proposed law, it gives literally no information governing
a. protection of the data from abuse by civil servants, foreign entities and corporate bodies
b. protection of the servers on which the data will be stored
c. the government officers who will have access to the servers, and the penalties for government officers who illegally access and tamper with the data on the servers
d. the specific government officers who will be allowed to access to the data base, the guidelines under which they will access those servers, and sanctions against government officers who access the data without authorization. Open access of the data to every single officer of government is a security risk
e. prohibition of sale or sharing of data by officers or institutions of the Kenya government to an external, foreign or corporate body
f. the right of the citizens to know details of the servers and data protection software to protect both their collective data and individual data
8. DISCRETIONARY POWERS FOR STATE OFFICERS
Too much discretion is given to State Officers in the governance of the NIIMS system, for example,
a. the Cabinet Secretary is mandated “to ensure the structure and design of the NIIMS is output oriented, technology neutral, flexible, and has no technology lock-ins by any vendor.” There is no explanation of what these technical terms mean.
b. The Principal Secretary is empowered to cancel the enrolment into NIIMS for “any other justifiable cause” without any judicial process taking place, or without even informing the individual or individuals concerned.
9. VIOLATION OF WOMEN’S AND CHILDREN’S RIGHTS
The requirements of the Huduma Bill are abusive to women and their children in several ways:
a. The Bill requires mothers to produce data on the baby’s date, type of delivery, any disability, weight at birth, and place of birth, data which may not be immediately recorded or measurable to women delivering children in traditional deliveries or away from medical facilities. The bill shows no sensitivity to the complex process that is childbirth.
b. The requirement that information on the child include the mother’s marital status and previous births is discriminatory against women and their children for the following reasons:
- It invades the right to medical privacy of the mothers
- The law is callous, because it potentially requires mothers whose infants die shortly after birth to register their babies for Huduma Numbers for birth and death, since the only babies who are exempted from registeration are those who are delivered as still born
- The indication of marital status is unnecessary and prejudicial, given the social norms that currently disfavor single mothers and their offspring
- Similar information is not required of the fathers of the children
- It requires mandatory registration of babies born to Kenyans abroad, whether the parents intend for the child to acquire Kenyan citizenship or not. It also assumes that such Kenyans will have access to facilities where they can register for the Huduma Number
c. The penalty for late enrolment of new-borns fails to take into account the family circumstances around which mothers give birth to children. The assumption of criminality shows the bad faith of the state with regard to the Kenyan people.
d. The requirement on surrogacy laws to be registered with and approved by a state agency is, once again, state overreach and a breach of the right to privacy of women and parents. Identification laws should be limited to living people, and the process by which they are conceived by covered under a separate law.
10. VIOLATION OF CHILDREN’S RIGHTS
Additional violations of children’s rights reside in the National Education Management Information System number which covers minors in school. In particular:
a. There is no clarity on what data from children will be entered into the system, or which officers will be responsible for entering that data
b. There is no provision in the bill for parents to have access to the children’s data, and yet the children are minors
c. It is ironical that children will be required to acquire new Huduma cards at age of majority, and yet the claim of the government is that Huduma Number will be a single card for a life time.
d. There are no regulations on what happens to the data of children once they attain majority status. This opens the door for adults being made responsible for actions that they carried out when they were minors.
11. EDUCATION MANAGEMENT
a. The bill proposes to contain records of education and academic achievement recorded on the National Education Management Information System, which is a system that is already illegal and unconstitutional because it does not respect the rights of minors, nor does it protect their data.
b. Educational data on a national identity document is potentially discriminatory against people who do not have access to any education or higher quality of education. Because provision of education and academic achievement are still affected by social inequalities in Kenya, attaching educational information to identity documents will essentially brand people’s identity with their social and academic experience. This means that the Huduma number will essentially entrench inequality and deny opportunities to people independent of their educational experience.
An individual’s academic history and records should be independent of one’s identity. The burden of integrity and verification of educational achievements falls on the educational system and educational institutions, not on the human being.
12. TAXATION AND OTHER ECONOMIC TRANSACTIONS
The bill proposes to make registration of Huduma Number an automatic registration with the tax authorities. This is problematic for the following reasons:
a. Attaching taxation to identity makes citizens, especially those with limited information or education, vulnerable to abuse and enslavement from tax authorities, commercial entities like banks and even unscrupulous money lenders and other product sellers. Once citizens have any form of debt indicated on their number, even monetary demands that are disputable will be deducted before arbitration.
b. Huduma Number makes people will more vulnerable to debt and to being bombarded with debt products.
Documents indicating taxation and economic transactions should be separate from the identity documents. Tax is charged on income and property, not on identity or a human beings mere existence. Attaching economic transactions to citizens’ identity essentially turns human beings into slaves.
13. RIGIDITY OF THE CENTRAL STATE AND THREAT TO DEVOLUTION
The Huduma Bill will violate the principal of devolved governance by holding absolutes rights over the data of all citizens. If passed into law, it will give the central state the ability to manipulate the citizens in different counties without citizens being able to exercise governance at the county level. It also has the potential to become a tool for the central state to manipulate census results and gerrymander elections.
The Huduma Bill is essentially a law of enslavement, similar to the laws used to entrench the enslavement of African people’s in the Americas. The bill transfers the government's responsibility for accountable data collection, robust institutions and provision of social services to the citizens.
The responsibility to keep proper records, build institutions and provide services belongs to the government. It is not the responsibility of citizens to make the government’s work easier by sacrificing their freedom, and human dignity, just to prove that they are worthy of services from the government. The people are sovereign over government, not the other way round.
It is up to the members of the state who offer themselves for public service to coordinate the diverse functions that relate to different people in different ways at different times.
Through this bill, the State reveals that its attitude to the people is not that of a servant of the people, but of bad faith, where the State assumes that the failure of citizens to meet legal provisions is necessarily deliberate and with criminal intent. Likewise, the bill assumes that officers of the state are perfect human beings incapable of making mistakes or violating the law and the rights of citizens.
The emphasis of the bill on sanctions and penalties, as well as the single and absolute nature of the proposed Huduma number, essentially turns the Republic of Kenya into an open-air prison where the people have no rights beyond what the state will grant them.
The Bill is an offence to human freedom and dignity and should be rejected in toto, and not considered for any revision.