Last week, the Kenyan High Court blocked the country’s new digital ID initiative from moving forward in its current form. Other nations’ judiciaries have taken on similar biometric ID programs—the Indian Supreme Court set limits on the subcontinent’s massive Aadhaar program, which has scanned the irises of over a billion people. But never before has a court halted a digital ID scheme on the grounds that it could exclude a segment of the population.
It’s high time. Kenya is one of many countries (including the Philippines, Nigeria, and Mexico) looking to digitize their national ID systems. The privacy concerns related to digital ID are well known; they were the focus of India’s Supreme Court ruling, for example. Less known is the way these digital systems are often being built, as in Kenya, atop discriminatory regimes.
We should all be worried. Tech-utopian schemes don’t make systemic bias disappear. They make it worse.
Kenya’s current national ID system is not unlike the Jim Crow South in the United States: old, analog, and ugly. Take a typical example, a house cleaner and single mother whom we’ll call Ziya. (She asked us to change her name to protect her from retaliation.) All her life, Ziya has lived in a one-room mud house in Nairobi’s biggest slum. Like one of us (Mustafa), she belongs to Kenya’s Nubian community. Her ancestors were conscripted from what is now Sudan to fight in World War I, and were then resettled to Nairobi by the British empire, over a hundred years ago.
Ziya applied for a national ID card as soon as she turned 18. Most Kenyans barely think about the application, and receive a card in a month. But the Nubians are one of several tribes, all of them Muslim, altogether comprising 5 million people, who often undergo a discriminatory “vetting” process in order to obtain ID cards.
If you belong to one of those tribes, you end up waiting months to appear in front of a vetting committee. You may have to produce an extra set of supporting documents—even documents from your grandparents or great-grandparents—and your process can take years.
Ziya applied for an ID in 2013 and received an appointment with the vetting committee in 2014. The committee asked for her birth certificate. Many Kenyans don’t have birth certificates; the system for issuing them has long been inadequate. When Ziya couldn’t produce hers, the vetting committee sent her away. She then visited the Civil Registry to ask for a copy of her birth certificate, but a registrar told her that her records weren’t in the system. So she signed up for another appointment with the vetting committee.
This time, the committee instructed Ziya to apply afresh for a birth certificate. She went back to Civil Registry, but the registrar told her that because she was over 18, she needed to provide a copy of her ID card, which of course she did not have. At wits end, Ziya waited for the chance to appear for vetting once more, but the committee was unwilling to listen or consider alternatives.
Ironically, the main reason Ziya had applied for an ID was to secure a birth certificate for her son. She’d need one to enroll him in preschool. But she found herself trapped in a hall of mirrors. You can’t get a birth certificate for your son because you don’t have an ID; you can’t get an ID because you don’t have a birth certificate for yourself; you can’t get a birth certificate for yourself because you don’t have an ID. Dejected, Ziya gave up.
As a result, she struggled to find work. Formal jobs require an ID. Ziya found it was even hard to clean someone’s apartment, because security guards demanded an ID before letting her into buildings. “My life was going nowhere,” Ziya said.
You might think digital ID would be a way of preventing situations like this. Do away with the committees and paperwork; put everything online. Scan your and your child’s finger, and get in the system forever. The Kenyan government says its new digital scheme will be “the single source of truth on a person’s identity.” This “central master population database” will make it easier and more efficient, the government claims, for its agencies to deliver essential services to the people who need them.
On paper this seems inclusive; the database is intended to cover all Kenyan citizens and foreign residents. But to obtain a digital ID, you need proof of your identity, something people who face discrimination often lack. And under the proposed scheme, the consequences of not having an ID will be even greater. According to a bill the government introduced last July, a parent who fails to register her child’s birth in the new database could face a year in prison. And nearly all public services—enrolling in school, accessing health care, registering for an electricity connection—would be contingent on possessing a digital ID.
Swahili is the lingua franca among Kenya’s many ethnicities, though ironically the Swahili people are among those subject to vetting. There’s a Swahili proverb, Mtoto wa nyoka ni nyoka—the child of a snake is a snake. Digital ID in Kenya would be the child of analog ID, and its venom would be deadlier.
Kenya is moving fast. The government scanned the fingertips of 38 million people, about three-quarters of the population, last year. According to the government’s own data, 10 percent of those who applied to the new digital scheme were turned away for lack of documentation. Discriminated minorities sued, raising constitutional concerns. Last week, the High Court said the program could not continue until there is a “comprehensive and appropriate” regulatory framework in place. The ruling forces the government—and the world—to rethink.
The government has not officially explained why it subjects Muslim Kenyans to special vetting, though it has done so since the 1980s. The reason we hear most from officials speaking off the record is security. Kenya has experienced multiple terrorist attacks, including one at a university in Garissa in 2015 in which gunmen killed almost 150 people. The East African group Al-Shabaab claimed credit for that attack and several others.
But there is no evidence that vetting makes Kenyans safer. The documents vetting committees demand and the questions they ask have little to no bearing on whether someone is a terrorist. To the contrary, vetting is likely counter-productive. Yussuf Bashir is lead counsel on the court case challenging the digital ID scheme and founder of Haki na Sheria, an organization dedicated to the rights of the largest group that faces vetting, the Somali-Kenyans. He told us, “The best way to drive someone underground, to make him susceptible to an ideology of hate, is to deny him papers and exclude him from society.”
Meanwhile, Kenya’s progressive, hard-won 2010 constitution defines the nation not on the basis of tribe, but on the basis of values like equality, democracy, and social justice.
We should be defanging the snake instead of reproducing it. The four of us have been working for seven years with groups like Haki na Sheria and the Nubian Rights Forum to deploy community paralegals who support people to overcome discrimination. We’ve seen firsthand that it’s possible.
Ziya met two of those paralegals, Zena and Zahra, in late 2017. They helped Ziya navigate the convoluted, counterintuitive system and encouraged Ziya to try passing vetting once more during a mobile registration event, in which the paralegals brought the registrars and a vetting committee into the community.
The vetting committee has discretion. This time—perhaps swayed by Ziya’s confidence and knowledge of the law—they let her through. An ID card meant she could secure a birth certificate for her son, access a scholarship he qualified for, and work without harassment.
The mobile registration took place in a mosque’s community hall. The committee’s eight members sat on plastic chairs behind a U-shaped arrangement of wooden tables. Standing in front of them, holding the receipt that said she’d receive her ID, Ziya wept. It was a hundred years after her family reached Nairobi and five years since she started trying for an ID. She felt like a Kenyan for the first time.
Since 2013, 24 paralegals have helped over 12,000 people from vetted communities obtain ID documents, sprouting a movement to end vetting altogether. Ziya is part of it, sharing her story with journalists, in community meetings, and before a panel of government officials organized by the United Nations. Many non-Muslim Kenyans don’t know vetting exists. “If you think discrimination is a lie,” Ziya says, “listen to me.”
Kenya is far from the only place this story is playing out. The World Bank is investing $1 billion in digital ID projects in 45 countries, and many of those regimes discriminate in some way. Myanmar, for one, has begun digitizing its ID system; its citizenship law is explicitly biased against the Rohingya and other minorities.
India has already built its digital ID system. Late last year, the government announced citizenship reforms, which openly discriminate against Muslims. Those changes led to nationwide protests. As of now, possession of a digital ID has no bearing on whether someone is an Indian citizen. But in India today, nothing about identity feels certain.
Governments need to live up to the principle of inclusion they often espouse. That means eliminating discriminatory policies and practices and refraining from criminalizing or otherwise punishing failure to obtain an ID. If a government is going to transition from an analog system to a digital one, it needs to address exclusion before doing so.
Admittedly, that’s easy to demand and hard to accomplish. Nativist politicians are winning elections by demonizing minorities; once in power, those politicians aim to deliver on their promises.
Truly shifting our systems toward equality is going to require nothing less than a new wave of multiethnic movements for justice. Grassroots legal empowerment—the kind of work done by community paralegals like Zena and Zahra—can contribute to those movements in two ways. First, when you gather the stories of individual attempts to secure rights, it shows you how a system is working in practice. Data from thousands of cases has demonstrated the severe delays that vetting causes, for example. That data is essential for educating the Kenyan public and for making the argument that vetting is unconstitutional. Second, when people facing discrimination start understanding and using the rules as they exist—unjust as those rules may be—they often become more able to do what Ziya is doing now: Take part in a movement to demand a new set of rules that is fair.
There are opportunities for legal empowerment all over the world. In the United States, where several states have imposed ID requirements seemingly designed to keep people of color from voting, community paralegals could help people to register despite the new hurdles. In India, paralegals from excluded communities could support people to secure citizenship rights under the new reforms, despite the government’s biased intent.
Any good-faith transition to digital ID should involve legal empowerment groups throughout, to ensure that marginalized communities are not excluded and to surface problems as they arise. Significant time and money goes into the roll-out of digital ID schemes, and tech companies stand to profit handsomely. A tiny fraction of that investment could go a long way toward empowering the communities who face the greatest obstacles.
What motivated Ziya most was the possibility that, if her son got a birth certificate, he’d never go through what she went through. Since she started advocating publicly, Ziya says she’s heard some officials regret giving her an ID in the first place. The picture on her ID came out dark and blurry. She is afraid to go back to the registrar’s office to get it replaced, lest she encounter an official whom she’s angered. But she keeps speaking out. We all should.
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