Becoming digital citizens: The unending struggle for human rights among former stateless communities in Kenya

Mount Kenya/CREDIT: Håkon Dahlmo
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On December 5, 2023, the Kenyan High Court  suspended the registration and issuance of new digital ID cards, known as Maisha number. In the ruling, Justice John Chigiti ordered the government to ensure public participation and data protection impact assessment before implementing the programme.

The lawsuit, filed by a consortium of Human rights organizations, argued that the government’s move to introduce digital ID posed a serious threat to people’s privacy, and could prevent historically marginalized and minority groups from obtaining identification documents and, therefore, becoming digital citizens.

This article underscores the critical need for former stateless minorities to access digital citizenship and enjoy the right to nationality. It looks into their continued struggle for human rights even after being recognised as Kenyan nationals and citizens.

The position of “Non Kenyans” in modern Kenya

Because of their origins and settlement in Kenya, communities such as Makonde and Shona have long been denied social, economic, and political rights. The idea that they originated from Mozambique and Zimbabwe made them perceived as non-Kenyans, with their neighbours referring to them as wageni (visitors).

They could not access rights accorded to citizens such as access to identity documents (passports, IDs, birth certificates, and death certificates), official employment, healthcare, education, and other social services. In addition, they were not allowed to vote, register SIM cards, operate businesses, create bank accounts, or register their children’s births.

Against this perception and their socio-economic and political exclusion, these communities called for recognition of and protection of their human rights. Non-governmental organisations (NGOs) and civil society organisations (CSOs) like Haki na Sheria, the Kenya Human Rights Commission (KHRC), NAMATI Kenya, and the United Nations High Commissioner for Refugees (UNHCR) supported them in this endeavour.

Efforts from these CSOs and NGOs resulted to the recognition and granting of citizenship to the former stateless communities such as the Makonde in 2017, Shona in 2020, and Pemba in 2023. They also received identity documents such as birth certificates, national IDs, and passports. Hence, it was presumed that they could access previously denied services such as education, employment, and health, among others.

The digital threat

Despite being recognized as citizens, introducing a new digital identity may curtail their rights to access services and participate in society.  The Digital ID aims to provide each person with a Unique Personal Identifier (UPI)-Maisha Number at birth that will serve as their ID number for life.

Introduction of Maisha Number by the government is, however, facing opposition from CSOs and NGOs for violating Article 56 of the 2010 Kenyan Constitution, which requires meaningful public participation from civil society organisations, stakeholders, and members of the public, including marginalised communities and minorities, in working groups or committees that oversee digital identity.

In their statement to the Ministry of Interior, the human rights organizations asked the government to enact a robust legal framework, ensure access to critical documentation (birth certificates and ID cards) for all Kenyans, institute adequate data protection measures, and undertake and make public a Human Rights Impact Assessment before implementing Maisha Number.

The rights groups cautioned that if the government does not remedy the aforementioned gaps, it could lead to ongoing discrimination, invasions of privacy, and the denial of access to documentation for historically marginalised people. The other challenge is the rise of digital citizens, which Maisha Number would eventually linked with online services provided by the government.

Digital citizenship?

Digital citizenship is based on equitable access to digital tools, connectivity, and the technical and civic skills essential for using them in socio-political and economic life. This is in contrast to citizenship, which is symbolized by an ID that grants rights and responsibilities. Regrettably, the government’s implementation of digital citizenship has not considered digital technologies’ accessibility, connectivity, literacy and agency among these communities.

Since most of these populations reside in rural and impoverished areas, a significant obstacle to practising digital citizenship is inadequate access to the internet and mobile phones. In rural Kenya, only 13.7% of the population is connected to the internet while 41% own mobile phones.

The high cost of living and high unemployment levels make it difficult for most of these groups to access the internet, even in places where it is available. This is especially true for women living in rural areas, who, due to existing gender inequalities, have less income and are thus unable to afford connectivity.

Internet connectivity and availability do not translate to effective use of digital technologies. A recent digital literacy study reported that most people in rural Kenya could not use technological devices due to low literacy levels. This is the case with these communities, who have not only been excluded from access to education but have also missed out on the government’s digital learning programs.

The inability to access digital infrastructure means that community members cannot make rights claims via the internet.  Because of their incapacity to successfully employ digital citizenship to ensure governmental responsiveness to their needs and objectives, they continue to be subjects rather than citizens.

The high price of being a Kenyan

The challenges of introducing digital ID are compounded through a special gazette notice of November 7, 2023, requiring fees in issuing crucial identity documents. For example, first-time ID applicants must pay Kes 1,000 to obtain a document formerly issued at no cost. One will also part with Kes 1,000 to replace a lost ID, a service previously offered at Kes 100.

In light of the high cost of living, the decision to charge for ID credentials will only serve to further deny formerly stateless communities access to citizenship and nationality. These communities have previously been denied access to income-generating activities, causing them to live in abject poverty. As such, the sudden increase in fees could make it more difficult for these communities to access government services or even to participate in activities that require official documents, like marriage and voting.

Before putting digital identity systems in place, the government should prioritise developing the infrastructure that guarantees the availability, accessibility, connectivity and literacy of digital technologies in rural areas. Its implementation should prioritise protecting and including former stateless communities and marginalised groups.

Dr Fred Nasubo (@FNasubo) PhD is a Postdoctoral Research Fellow at the British Institute in Eastern Africa, and Lecturer in History at Taita Taveta University, Voi, Kenya.

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