The Government, respectively through the Ministry of Interior and Coordination of National Government and Ministry of Information, Communication, Technology, Innovation and Youth Affairs, has placed a call to the public, inviting them to air their views on two critical regulations: Registration of Persons (National Integrated Identity Management Systems (NIIMS) Regulations, 2020 and Data Protection (Civil Registration) Regulations, 2020. The former seeks to operationalize Registration of Persons Act, and in particular section 9A of the Act, whereas the latter seeks to operationalize the Data Protection Act, 2019.
Partly emboldened by the recent High Court ruling, which paved way for the implementation of Huduma Namba, the Government appears keen to reciprocate the favourable ruling, by complying with the directed conditions which include, inter alia, establishing applicable regulations. The High Court ruling has since been appealed at the Court of Appeal, with the appellant, the Nubian Community, raising concerns of privacy violations. The concern of the Nubian Community is not isolated. It is, in fact, reflective of the rising concern among the public regarding the safety of their data and indeed the use to which it is put.
Granted that the Government may have an undeniable justification on the need to regulate informational transaction, especially in the era of data misuse for insidious ends, such as terrorism, care must be taken to ensure that the regulator itself does not betray the trust of the regulated. In the case of NIIMS, the first issued that would perhaps need proper redress and reconciliation would be whether or not it would be mandatory to be registered into the System.
In April 2019, a three-judge bench of the High Court ruled that the exercise not to be made mandatory. It needs to be clarified whether the recent ruling, giving the Government the green light to proceed with the project, effectively reverses the earlier ruling that allowed for registration to be on a voluntary basis. A look at the NIIMS Regulations, for instance, leaves one wondering whether failure to register would leave them vulnerable, especially in so far as access to public services is concerned.
Section 10 of the Regulation provides that ‘A Government agency requiring personal particulars of an individual shall, at the first instance, rely on the NIIMS database to authenticate the foundational data of an enrolled resident individual.’ Foundational data, according to the Regulations, is defined as ‘the basic personal data of an individual for attesting the individual’s identity and includes biometric data and biographical data’. If NIIMS database becomes the primary reference source for basic information for government agencies, would anyone who opted not to register be denied services dispensed by or assigned to that office or agency?
An even more concerning issue would be the willingness by the government to duly comply with existing information related laws. The Constitution, in Article 31, provides that ‘Every person has the right to privacy, which includes the right not to have (c) information relating to their family or private affairs unnecessarily required or revealed; or (d) the privacy of the communication infringed. Article 35 guarantees access to information: ‘Every citizen has the right of access to (a) information held by the State. To pump life into various information related provisions of the Constitution, a number of legislations have since been passed, including Access to Information Act, 2016 and Data Protection Act, 2019. Compliance with the laws by government is a sustained challenge.
The question that begs is: What options remain to the public to enjoy their right to privacy and access information? Response lies in eternal vigilance. Vigilance during the preparation of the laws and also during their implementation and enforcement. Surrendering can never be an option. It is exactly for that reason that citizens of goodwill must go through the two legislations lined up for public participation on 26th and 27th February 2020 and turn out to share their views, including justified reservation they may have thereof. Citizens are duty-bound to shape the society in the manner they wish to have it serve them.
Blog by Alex Ogutu, Programme Officer at Mzalendo Trust.