The Milimani High Court has overturned previous orders that had temporarily suspended the rollout of the Unique Personal Identifier, commonly referred to as Maisha Namba. This decision, delivered on Monday, marks a pivotal moment in the ongoing legal battle surrounding the government’s digital identification initiative.
The suspension of the Maisha Namba implementation was initially imposed following a petition by the Haki na Sheria Initiative. The petition challenged the rollout, arguing that it posed a significant threat to constitutional rights and freedoms. Haki na Sheria, represented by lawyer Summayah Mokku, contended that the government’s actions violated several provisions of the Constitution, including transparency, public participation, and the right to privacy.
In their argument, Haki na Sheria highlighted that the Maisha Namba rollout lacked adequate public participation and transparency. The petitioners further claimed that the initiative could lead to the exclusion of certain groups within the population, thereby infringing on their constitutional rights. Concerns about the potential for mass personal data breaches were also raised, with the petitioners warning that the government’s actions could result in irreversible harm to citizens’ privacy rights.
However, in its Monday ruling, the Milimani High Court, led by Justice Lawrence Mugambi, found that the government’s interests outweighed the concerns raised by the petitioners. The court noted that the suspension of the Maisha Namba rollout had immediate and direct negative impacts on a large portion of the population. Justice Mugambi emphasized that it was not in the public interest to maintain the interim conservatory orders that had halted the implementation of the digital identification system.
“Having regard to the foregoing reasons, I am persuaded that it is not in public interest to maintain the interim conservatory orders,” the court ruling stated.
The court’s decision effectively allows the government to proceed with the Maisha Namba rollout, despite the ongoing legal challenges. However, Justice Mugambi did acknowledge the concerns raised by the petitioners regarding data security and the potential for exclusion. He noted that the respondents—the national government, Attorney General, Interior Cabinet Secretary, and Principal Registrars of Births, Deaths, and Persons—were actively collecting, processing, and storing data despite the security concerns outlined in earlier petitions.
“There is great risk of prejudice being caused to members of the public and their right to privacy by the disclosure of certain types of personal information in the absence of proposals on how that data will be protected,” Justice Mugambi ruled.
The judge further opined that the Maisha Ecosystem, which includes the Maisha Namba, Maisha Card (3rd Generation National Identification Card), Maisha Digital ID, and Maisha Database, could exacerbate existing issues of citizenship exclusion in Kenya.
“Should the respondents be allowed to proceed with this process and later on it is found to be unconstitutional, there is no amount of compensation or measures that can redress data breach,” he warned.
Justice Mugambi’s ruling underscores the complexity of balancing the government’s need to implement national identification systems with the protection of citizens’ constitutional rights. While the Maisha Namba rollout will now proceed, the legal battles surrounding it are far from over. The court has indicated that the case will continue to be heard, and the broader issues of data protection, public participation, and constitutional rights will remain at the forefront of the ongoing legal discourse.
The ruling has sparked a debate on the implications of digital identification systems in Kenya, with citizens and civil society organizations closely monitoring the developments. As the Maisha Namba initiative moves forward, the government’s handling of data security and inclusion will be under intense scrutiny.
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