February 19, 2022
REPUBLIC OF KENYA
THE NATIONAL ASSEMBLY
TWELFTH PARLIAMENT – FOURTH SESSION
REGARDING THE WITHDRAWAL OF THE HUDUMA BILL, 2021 FROM THE PARLIAMENT ORDER PAPERS AND STOPPAGE OF ANY FURTHER DELIBERATIONS AND PUBLIC ENGAGEMENT ON IT, IN ITS CURRENT FORM AND STRUCTURE.
WE, THE UNDERSIGNED, on behalf of our various organizations and the people of Kenya, DRAW the attention of the House to the following:
- THAT, we held a two-day consultative meeting in Naivasha, with the National Assembly Departmental Committee on Administration and National Security, over the Huduma Bill, 2021.
- THAT, in attendance to the two-day consultative meeting were representatives of the Department of Immigration, the Independent Electoral and Boundaries Commission (IEBC), the Huduma Secretariat, the Office of the Data Commissioner and the Principal Administrative Secretary in the Ministry of Interior.
- THAT, this two-day consultative meeting on the Huduma Bill, 2021 was premised on our proposed amendments with grounded recommendations, which proposed amendments are as attached to this petition.
- THAT, having made our submissions during the session and listening to the submissions of the Independent Electoral and Boundaries Commission, the office of the Data Protection Commissioner and the Huduma Secretariat, we were convinced more than ever, that the Huduma Bill, 2021 is a bad bill. It is a misnomer. It is a security surveillance bill, that perpetuates exclusion as it securitizes social services and should it pass in its current form, it will prevent access to the Chapter three and chapter four rights under the Constitution of Kenya, 2010.
- THAT, the objects and the long title of the bill do not speak to the Kenyan problem that the bill seeks to solve, which is the reform of the identity ecosystem, hence making the bill fatally flawed in form and structure.
- THAT, the institutional infrastructure proposed in the bill makes the Principal Secretary, the prosecutor and judge in cases of decision making on issuance of Huduma number, arbitrary powers subject to abuse. A good institutional infrastructure would have provided for an institution to oversee management of the legal identity and a two or three tier administrative process, with an appellate provision and subjected to Parliamentary oversight.
- THAT, a law should not purport to disband institutions in the identity ecosystem like the Huduma bill, 2021 proposes, especially, since some of the legislations that it proposes to repeal, were enacted to help implement the Constitution of Kenya, 2010. The Huduma Bill, 2021 proposes to repeal them without factoring their Constitutional anchorage and their role in operationalizing the Constitution of Kenya, 2010 to give effect to rights under Chapter three of the Constitution.
- THAT, the risks of enacting the Huduma Bill, 2021 as is, far outweigh the benefits. The current structure and the form of the bill is not in legislative harmony with the identity ecosystem, making the bill fatally incurable.
- THAT, the timing of the bill with less than six months to the General Election 2022, especially since it mentions that the Independent Electoral and Boundaries Commission may rely on it for purposes of voter registration, may create confusion and throw the entire electoral process into disarray.
- THAT, the Huduma Bill, 2021 proposes governance by technology, without creating the institutions for that governance, subjecting the governance to systems that cannot be oversighted. It comes off as diminishing chapter three of the constitution by reducing the vital function of citizenship and immigration, civil registration and even management of the national population register to a mere system.
- THAT, there is no digital identity policy for Kenya, which as a good practice, should precede and guide the development of a digital identity ecosystem legislation, such as the Huduma Bill, 2021.
- THAT, the Huduma bill is fundamentally unconstitutional, as it violates rights under chapter three of the Constitution of Kenya 2010, in a manner not contemplated by Article 24 of the said Constitution.
- THAT, Technology needs to be used as an enabler for Social Services, to serve the citizens, but in the Huduma Bill, 2021, it is being used for exclusion to services.
- THAT, the Huduma Bill, 2021 needs to institutionalize the process of reforming the identity ecosystem, instead has only created systems without institutions.
- THAT, the Huduma Bill, 2021 will add to further exclusion of various categories of persons, as it seeks the requirement of documentation such as national identity cards amongst others to access huduma number, documents that sections of persons have been discriminated from obtaining. The Huduma Bill, 2021 will aggravate an already bad situation.
- THAT, the Huduma Bill, 2021 treats minors, in a similar manner to adults in obtaining their data, whilst normally, minors might not receive the types of services anticipated under the Huduma Bill, 2021, unless with the consent or through their parents and guardians.
- THAT, the disharmony that was displayed by the government/public institutions, the Independent Electoral and Boundaries Commission, the Huduma Secretariat, the office of the Data Protection Officer and the Department of Immigration during the consultative meeting calls for a multi-sectoral, multi-departmental and Civil Society task force approach to facilitate further consultations and initiate reform to the policy and legislative framework on the identity ecosystem.
- THAT, a reform of the legal and policy framework on the identity ecosystem is necessary for Kenya.
- THAT, the envisaged policy and legislation, however cannot be and is not the Huduma Bill, 2021 as published on 3rd December, 2021.
THEREFORE, your humble petitioners pray that the National Assembly, through the Departmental Committee on Administration and National Security:
- Withdraws from its order papers, the current Huduma Bill, 2021 as published on 3rd December, 2021 and stop any further public engagement on it, to avoid wastage of public funds.
- To as soon as is practicable, set up a task force of all the government agencies who are consumers of the identity ecosystem together with Civil Society organizations, to facilitate further consultations and initiate an inclusive legislation and policy that reforms the identity ecosystem.
- To enact legislation that amongst others ensures data protection, access to services for all, good governance and accountability, guarantee access to citizenship documentation, inclusion and protection of the marginalized and minority communities.
- To do anything within its powers and means in ensuring Kenya enacts a legislation and policy that reforms the identity ecosystem, that takes into consideration the issues raised in this Petition.
- Kenya Human Rights Commission
- Heralding Development Organization
- Undugu Society of Kenya (USK)
- The Nubian Rights Forum
- ARTICLE 19 Eastern Africa
- Kenya ICT Action Network (KICTANet)
- Protection International Africa
- Namati Kenya
- Lawyers Hub Foundation
- Haki na Sheria Initiative
- Haki Centre
- Amnesty International Kenya
- Kenya Editors Guild
- Kituo Cha Sheria
- Katiba Institute
- Media Lawyers Association of Kenya
- Access Now