We’ll appeal ruling invalidating Huduma Namba – Interior CS Fred Matiang’i

Interior CS Fred Matiang’i at the Kenya School of Adventure and Leadership in Meru County on Friday, October 15, 2021. [Standard]

Interior Cabinet Secretary Fred Matiang’i has said the Government, through the Attorney General, will file an appeal against the High Court’s decision that invalidated Huduma Namba.

Matiang’i made the revelation on Friday, October 15, when he met newly appointed assistant county commissioners at the Kenya School of Adventure and Leadership (KESAL) in Meru County.

The High Court ruled that Huduma Namba roll-out in December last year was illegal as the Government failed to conduct data protection impact assessment before issuing out the cards.

Matiang’i, however, says the ruling was “based on wrong interpretation of the essence and practical intentions of Huduma card”.

“Huduma card is essentially a collation of different identity documents already issued and certified by the Government. The argument that the relevant validation data wasn’t factored in is therefore spurious,” he said.

The CS added that “digitisation of identification documents into a unitary or master ID system is a global trend, and Kenya is no exception”.

“The Government is keen to digitise its services and the Huduma card is integral to the envisaged digitisation agenda,” said Matiang’i.

The Huduma Namba registration and roll-out campaign cost the taxpayer at least Sh10.6 billion.

On Thursday, October 14, High Court Judge Jairus Ngaah declared Huduma Namba invalid, noting that the process was in violation of the data protection laws.

The Data Protection Act was enacted by the National Assembly, but without consulting the Senate, leading to a legal challenge by the Upper Chamber.

A three-judge bench later declared 23 of the laws unconstitutional. Justice Ngaah faulted the Government for collecting and processing data based on the invalidated Act.

“The order of certiorari (review) is hereby issued to bring into this honourable court and to quash the respondent’s decision of November 18, 2020, to roll out Huduma Card for being ultra vires of Section 31 of the Data Protection Act, 2019,” the judge ruled.

In November last year, Katiba Institute, through lawyer Yash Pal Ghai, questioned the State’s failure to register Kenyans afresh and to conduct a data protection impact assessment, a requirement provided by the Data Protection Act.

In court, the lobby group argued that the Government ought to have enacted a data protection law first, then amend the Registration of Persons Act before rolling out the Huduma Namba exercise.

Justice Ngaah agreed with the petitioner.

Ironically, the Government had enacted the Data Protection Act hoping to sanitise the exercise. But the same law came back to bite it, taking the exercise back to square one.

“An order of mandamus (compelling order) is issued to the respondent to conduct a data protection impact assessment in accordance with the Data Protection Act before processing of data and rolling out Huduma cards,” the judge ruled.

The Huduma Namba project has faced three challenges since its inception.

The first case was filed by the Nubian community, which challenged the Government’s use of the Registration of Persons Act to collect data.

It also raised doubts about the security of the National Integrated Informational Management System.

The Nubians also cited lack of public participation and the collection of DNA and GPRS location data.

The court ruled in favour of the Government on the condition that it would enact a data protection law.

The State was, however, barred from collecting the DNA and GPRS location data after finding that was intrusive.

Justices Mumbi Ngugi, Pauline Nyamweya, and Weldon Korir ruled there was no guarantee of data protection. They proposed the introduction of an amendment through a miscellaneous amendment Bill but cautioned this would limit public participation.