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The Judges have arrived and Day 5 of the #NIIMS hearing is commencing with appearances - follow us here for live updates
#HudumaNamba
#HudumaNamba
Respondents say that they would like to start with Dr Karanja Kibicho's evidence, as he has to travel this evening. After that Ms Ochieng PS ICT is due to testify
PS Interior Dr Karanja Kibicho takes the stand and is sworn in
Counsel is introducing the witness and he describes his qualifications
Dr Kibicho confirms that he is the administrator of #NIIMS and adopts the four affidavits that he has submitted to the Court
@MarthaKarua begins her cross examination of the witness
@yussufugas will also be cross examining him
@yussufugas will also be cross examining him
@MarthaKarua @yussufugas @MarthaKarua asks PS Karanja about his familiarity with the #Kenya #Constitution, in particular Article 1 which states that "sovereign power belongs to the people" - the PS says that he has looked at it and knows it
@MarthaKarua @yussufugas Karanja says that he understands that the #GOK answers to the people of #Kenya adding "I understand that government is made up of the three arms [...] to administer people who belong to the country. But as to whether the people are government; I don't share that understanding"
@MarthaKarua @yussufugas @MarthaKarua now asks about Article 10 of the Constitution, which grants the right to public participation
Dr Karanja confirms that in order for the people to have meaningful participation, #GOK must avail necessary information to the people
Dr Karanja confirms that in order for the people to have meaningful participation, #GOK must avail necessary information to the people
@MarthaKarua @yussufugas Dr Karanja adds that it is subjective what "adequate" information means in the context of public participation
@MarthaKarua @yussufugas "You are the administrator of #NIIMS; the #HudumaNamba" - "Yes I am"
"What is the minimum info required for people to register?" - Dr Karanja refers to the data capture form
"What is the minimum info required for people to register?" - Dr Karanja refers to the data capture form
@MarthaKarua @yussufugas Dr Karanja confirms that citizens over 18 must produce an ID card and those below 18 must produce a birth certificate to register for #NIIMS #HudumaNamba
@MarthaKarua @yussufugas counsel for the respondent refers the court to the data capture form as Dr Karanja lists further information requested for #NIIMS registration
@MarthaKarua @yussufugas Dr Karanja states that registration for #NIIMS was not mandatory following the Court order
@MarthaKarua @yussufugas Dr Karanja agrees that the data capture form does not show which section is mandatory and which section isn't
@MarthaKarua @yussufugas Asked whether information on address and ownership of agricultural land is required for identification, Dr Karanja says that other agencies were also seeking information and so a Committee was formed to ask what information #NIIMS should collect on their behalf
@MarthaKarua @yussufugas "But the only compulsory thing we required was the ID card for over 18 and the birth certificate for Under 18"
@MarthaKarua @yussufugas "So that data capture form is capturing more than identification for inter-ministerial means" - "yes and also for convenience" #NIIMS #HudumaNamba
@MarthaKarua @yussufugas Asked whether the info asked is personal information, Dr Karanja says that he disagrees because the information "is already with government institutions"
@MarthaKarua @yussufugas "Why do you bother asking people about info you already hold?" - "ID info is with government through NRB [...] but we know that our population register had been adulterated over time. You may find two people with IDs that have the same number" adds that there are passport fakes
@MarthaKarua @yussufugas "The delivery point of this government was digitization [....]. We digitized everything apart from the population register and therefore to complete the agenda of govt" #NIIMS was created as the missing link
@MarthaKarua @yussufugas Dr Karanja asks @MarthaKarua whether she has registered for #HudumaNamba - she says she has not
@MarthaKarua @yussufugas Dr Karanja says that the purpose of collecting new data was to clean up the existing registration system
@MarthaKarua @yussufugas "The requirement for physical address was not because of the ministry of agriculture. We want to identify a person and locate them to a place"
@MarthaKarua @yussufugas "The agriculture information was new and info on employment status, industry, agriculture and disability was a request by the participating ministries to not have to get ten times"
@MarthaKarua @yussufugas "You will therefore agree with me that the information you got included new information that the government did not have" - "I don't want to agree with you" - "but you just named three areas that were new - Dr Karanja says the new info exists and isn't personal info
@MarthaKarua @yussufugas On the information collected on land and agriculture Dr Karanja explains that the information is not new but confirms that it was never put in this format and never collected in a central register
@MarthaKarua @yussufugas Dr Karanja says that at first registration, about 38 Million Kenyans were registered for #NIIMS
Asked about how many are minors, he says that currently nothing has been analyzed in compliance with the court order
Asked about how many are minors, he says that currently nothing has been analyzed in compliance with the court order
@MarthaKarua @yussufugas "Every person we registered as a child, must have been accompanied by a person" - Martha asks about boarding and secondary schools and whether registration was accompanied there - Dr Karanja says he must confirm this at a later stage
@MarthaKarua @yussufugas "What info did the govt give re #HudumaNamba?" - "PSs went out, Committees went out, the Chiefs and Assistant Chiefs ensured that everyone was sensitized. I personally went to over 20 places" adding that it was well before registration started
@MarthaKarua @yussufugas @MarthaKarua presses Dr Kibicho on the fact that he told people that #NIIMS registration was mandatory
@MarthaKarua @yussufugas Dr Karanja says that #HudumaNamba preparation started in February 2018 and that this is when civic education began
@MarthaKarua @yussufugas @MarthaKarua "yes or no, did you go flat out to the public after the filing of this case?" - Dr Karanja refuses to directly answers the question but adds that "we did not go because of the case, we went because it was the right thing to do"
@MarthaKarua @yussufugas Martha asks about Article 24 of the #Kenyan #Constitution stating that there must be a law framing the purpose of data collection, such as DNA - Dr Karanja emphasizes that DNA was not collected but Martha points out that the collection of DNA is provided for in the amendment
@MarthaKarua @yussufugas "So you agree with me that the definition put in the law is giving a wider latitude than what is necessary?" - "We defined it as it is defined by law"; Dr Karanja says they relied on the dictionary definition of biometrics
@MarthaKarua @yussufugas "Now until eternity we are only interested in digital fingerprints and digital photographs" but adds that further information is intended to be collected only for people who cannot provide fingerprints
@MarthaKarua @yussufugas "yes or no, do you agree that the law allows you in the future to collect further information?" - "No" - Martha reiterates her question "if we go by the definition of the biometrics, it does"
@MarthaKarua @yussufugas "Are you aware that the petitioners are not opposed to digitization of records? All they have is concerns about the manner in which it is done" - "my interpretation is that they are opposed to it but I will leave it to them to confirm"
@MarthaKarua @yussufugas Karanja is asked to read from the submissions stating that the petitioners are not opposed to unique identification numbers but that they are concerned about a central platform - Dr Karanja says that this is much like saying "I love you but I will still slap you"
@MarthaKarua @yussufugas "Has it occurred to you at all that as a senior officer of the government [....], you could sit with the petitioners to discuss and understand their concerns?" - "there is nothing I would have loved more. But we had hundreds of Kenyans who came to us with these questions"
@MarthaKarua @yussufugas "Now that the suit was filed in court, did you attempt to reach out to the petitioners to engage them?" - "we engaged hundreds of people, including parliament, churches..." - "so the answer is no" - "the answer is no and they had an opportunity to task the questions"
@MarthaKarua @yussufugas On data security concerns, @MarthaKarua asks whether the principles on data protection, fairness, lawfulness and transparency are fulfilled if they do not reach out to the petitioners to engage on these concerns - Dr Karanja says this particular group did not come to them
@MarthaKarua @yussufugas On data minimization the data protection policy suggests that the least amount of data necessary be collected - Dr Karanja states "this data protection policy is not tailored for #NIIMS" - "Does it cover #NIIMS?" - "Yes" - "And there must be a data controller?" - "correct"
@MarthaKarua @yussufugas On data subject rights (information & access to data and opportunity to correct) @MarthaKarua asks whether this applies to #NIIMS - Dr Karanja confirms it does
@MarthaKarua @yussufugas "Does #NIIMS have a data controler?" - Dr Karanja says that under the amendments the PS Interior is able to collect data" - Who is the data controller?" - "I am the administrator" - "are you also the controller?" - "I have people working under me, like for example the NRB"
@MarthaKarua @yussufugas Dr Karanja says that the data collected under the registration of persons act is controlled by the director of the NRB
@MarthaKarua @yussufugas "Have you established a data protection commissioner?" - "the policy preceded the law as usual [....] creating a law takes a long time"
@MarthaKarua @yussufugas Martha states that the policy envisaged a comprehensive law to safeguard data - "I think we are aware that this bill is not law yet, so all the offices cannot be in existence until it becomes law"
@MarthaKarua @yussufugas Dr Karanja says that there is no lack of laws in government to safeguard data and that the intent of the data protection bill is to bring them all together
@MarthaKarua @yussufugas He adds that even if the bill is not turned into law, there is no risk in relation to #DataProtection in #NIIMS
@MarthaKarua @yussufugas @MarthaKarua asks whether the idea of #NIIMS is to consolidate information in the same way that the #DataProtection bill does and asks whether govt therefore should not have also put laws into place before collecting data - Dr Karanja disagrees
@MarthaKarua @yussufugas @MarthaKarua asks Dr Karanja to confirm that currently in relation to #NIIMS there is nowhere were a data commissioner or controller are specified - Dr Karanja is reviewing the Registration of Persons Act
@MarthaKarua @yussufugas Reads the section on the appointment of a principal registrar and that the functions include keeping a register of all persons in Kenya. It does not say that the Registrar will manage/protect data and hear complaints; it speaks to unlawful disclosure
@MarthaKarua @yussufugas Asked how one can complain about misuse of data, Dr Karanja has to confirm that at a later stage
@MarthaKarua @yussufugas @MarthaKarua presses Dr Karanja on the definition of a data commissioner or controller in the Act and he confirms that there is no definition
@MarthaKarua @yussufugas @MarthaKarua asks whether the Registration of Persons Act only applies to adult - Dr Karanja does not agree because the #NIIMS amendments apply to "all" - Martha points out that since the Act does not govern children, the "all" cannot incl children, as no new definition was added
@MarthaKarua @yussufugas Dr Karanja refers to an executive order and @MarthaKarua highlights that an executive order cannot supersede the law
@MarthaKarua @yussufugas Dr Karanja refers to a gazette notice on an executive order - the court asks whether it is annexed - Counsel confirms that it is not - Dr Karanja clarifies that it is part of the annexes
@MarthaKarua @yussufugas Martha Karua puts it to him that the gazette notice deals with the appointment with the inter-ministerial committee on #HudumaNamba and emphasizes that such a gazette notice cannot supersede the law. Dr Karanja wants to leave this to the lawyers
@MarthaKarua @yussufugas "Do you consider the Amendments to the Registration of Persons Act minor substantive?" - "We considered them minor" - "Even though they are introducing something new, centralized digitized" - "Other than farming, the rest of the data is not new"
@MarthaKarua @yussufugas Yussuf asks whether Dr Karanja has read through the concerns of the Nubian Community. He says that he has been briefed and is aware of the issue of vetting
“You aware that these communities are saying that vetting is a problem for these communities” - “I am aware”
“And you have not adduced any evidence that what they are saying is incorrect” - “I need to check what I said around that”
“You have not adduced any evidence to address historical discrimination?” - “I thought cross examination was meant to give me a chance to speak to what I haven’t introduced” - Karanja adds he doesn’t currently have docs but will provide them
Turning to #NIIMS Yussuf asks whether there are Kenyans who don’t have documents - Dr Kibicho confirms this and confirms that they would not have been able to register for #HudumaNamba
Dr Kibicho adds that #NIIMS is lifelong and that they are trying to address the existing gaps so people can register for -#HudumaNamba
On #NIIMS and services he says that “the choice of convenience of service belongs to you”
“For now you agree that an individual not in the system will be inconvenienced” - “yes, by choice” Dr Karanja adds not having the relevant documents is also by choice
“Can a Nubian acquire nationality documents without vetting?” - “Every Kenyan has to be confirmed by an assistant chief”
Dr Karanja speaks on vetting committees and whom they are made up of
“9 out of the 10 officers are government officers correct? So it’s a government-led exercise to establish who you are” - “of course it’s a government-led exercise”
@yussufugas raises the findings by the @ACHPR and @acerwc which have found #kenya to be discriminating against the Nubian community
Dr Karanja says he has to refresh his memories on these decisions
Yussuf is asking the PS Interior about the gaps in the existing registration system
Dr Karanja speaks to double registration of Digital IDs and says that the #NIIMS committee will process people who have fraudulent IDs and give them the correct ID
“You have acquired the data of 38 millions and you are saying one of the objectives of #NIIMS is to clean up the problems with the existing systems, correct?” -“yes”
Karanja “we will start with the basic information, which is a birth certificate which is not proof of citizenship. But if you are below 18, we will then call the Civil Registration and ask them to match it” because they have “accurate information”
Dr Karanja says all problems with ID duplication are because docs were manufactured outside the system but that there are no problems in the registry
Yussuf asks about the fact that no evidence is as adduced about the process of capturing undocumented Kenyans - Dr Karanja says that they are not processing the data in line with the court order but that systems are all in place
“The procedure and the policies - do you have something written on that?” - “we do, they were all ready and in place”
“So you knew these steps before the cases were filed and had them written down? - “we knew them but data cleaning is a software we are developing. You don’t write policy around a software”
“We have the flowchart but it wasn’t necessary to submit it to Court”
“Is it possible that someone who is Kenyan could be denied nationality?” - Dr Karanja says that if a Kenyan is not aware that they are holding a fake certificate, this will be identified but “it does not mean you are fraudulent yourself”
“Does someone with a fraudulent ID get a #HudumaNamba?” - “we cannot issue them with a Huduma Namba as this is the last step after the system has satisfied itself that this is that person”
Dr Karanja confirms that even those who will be issued with new documents because their documents are problematic will have to wait longer periods for their #HudumaNamba
Dr Karanja says that there are no numbers on how many IDs are fraudulent but if a number is important, that estimate can be made available”
“Will there be a maintenance cost?” - “of course. There is a system so it will need maintenance”
@yussufugas asks about the #NIIMS cost/benefit analysis - Dr Karanja confirms that they have not submitted any numbers weighing the costs and benefits to the Court
Dr Karanja says that the numbers on cost/benefit analysis exist but that they were not asked to submit them to the court. Yussuf points out that petitioners have challenged the use of tax payers money on #NIIMS
Returning the African regional decisions, Yussuf asks Dr Kibicho to read the recommendations that #GOK take steps to ensure that Nubian children have their Kenyan nationality recognised
“Have you submitted any evidence in relation to compliance with the decisions?” Dr Kibicho does not know whether Kenya has submitted info on the implementation of the 2011 decision
Asked whether a budget has been allocated to implement the decision, Dr Kibicho says that broadly it’s been budgeted for referring to civil registration exercises
“Have you taken specific affirmative action measures to resolve the challenges of communities like the Nubians?” - “we have. There has been a lot of interaction with us”
Dr Karanja wants to emphasise that the impression being created that Nubians don’t receive documents is false
“We are taking affirmative action with the Nubian communities to ensure that those who pass their vetting [...] we have done much more than what the African Union wanted us to do”
Yussuf asks whether he has submitted docs to the African Union on implementation of the regional decisions and points him to his affidavit which does not recognise the decisions as judicially binding. Dr Karanja states that they may have submitted a negative report
“Our efforts to secure birth registration are not guided by @ACHPR”
“You said Kenya values it’s compliance with decisions at the continental levels” Yussuf then refers him to the Nouakchott Declaration commitments to #CVRS “yet when it comes to the decisions by continental bodies, you have not submitted any docs re compliance”
Dr Karanja emphasises that they are not obliged to comply with regional decisions
Respondent counsel objects to the questions which do not wait for answers. Martha Karua states that witnesses should also answer with yes/no. The Court asks Yussuf to move on from the implementation of the African Regional decisions
“At the African level, do you chose which decisions to comply with and which ones not to comply with?” - “yes we do”
Yussuf is now asking the witness re data capture form which states that info may be shared with authorised govt agencies
“You are asking for consent that the #NIIMS data can go to other agencies?” - “as long as that agency is authorised”
Asked whether people have the option to withdraw their consent, Dr Karanja says that then they have not registered for #HudumaNamba: “you have to agree to share the information with authorised agencies”
Yussuf is now asking Dr Kibicho about the use of #NIIMS for national security
Refering him to the data protection policy, Yussuf asks for clarification on the fact that consent for the processing of data for national security is exempt from the policy
“Do you determine the circumstances in which this national security exemption to data protection applies in #NIIMS?” - “yes”
Asked whether the entire data collected under #NIIMS could be construed as exempt, Dr Karanja says that it could not
Yussuf says that the recommendation from the trip to Estonia was to do incremental registration of children at birth and Dr Kibicho confirms this
“why couldn’t you incrementally capture the data of children?” - “because we are mixing people who are already alive and are confusing those with the people who will be born”
Dr Karanja asks why the unique identifier throughout life, in school and at death, shouldn’t be the same number given at birth
“If we proceed this way, then we are following the Estonia route with children who are born tomorrow”
“To create #NIIMS you have not collected data of children from birth?” - “yes we have collected data from children through birth certificates. The only thing we didn’t collect was the fingerprints from those under 6”
Yussuf has concluded his cross-examination. Mr Kamau counsel for @HakiKNCHR wants to ask questions. Responded objects to lack of notice and the Court agrees. @MarthaKarua proceeds to ask final questions
“No new regulations are governing the administration of #HudumaNamba?” - “We are using the Registration of Persons Act”
The petitioners have concluded their cross examination. Re-examination will continue after lunch at 3:30
