I. Introduction
In the epilogue of her book, Decolonisation and Afro-feminism, Sylvia Tamale concludes by drawing our attention to the ongoing ‘scramble for Africa’ through digital colonialism.Footnote 1 She describes current digitalization initiatives by private companies as an appropriation of the means to solve African problems for another epoch. Taking a feminist lens, Tamale shows how the digital era in Africa engenders capitalism, in ways that are harmful to gender justice. She warns that if the digital realm is not decolonized, women are at risk of being left behind.
Tamale’s analysis is relevant to low and middle income countries (LMICs) such as Kenya, where citizens have to contend with digitalization from private actors and their governments.Footnote 2 In 2018, the government of Kenya added two provisions to a colonial-era law, the Registration of Persons Act (RPA), effectively transforming the system into a digital population register.Footnote 3 The law in Kenya now requires every person to register using primary identity documents such as birth certificates, national identity cards or passports. It also creates a system known as the National Integrated Identity Management System (NIIMS) or huduma namba. Footnote 4
Huduma namba is among a plethora of digitalization programmes supported by the World Bank and other development actors.Footnote 5 Through the Identification for Development (ID4D) programme, the World Bank and partners are attempting to issue proof of identity to an estimated 1 billion people in Africa and Asia.Footnote 6
In Kenya, digital ID is linked to legal identity and the recognition of a person by the state. It is also linked to citizenship entitlements. To ensure that these entitlements are targeted to intended recipients, digital ID programmes increasingly require authentication of the person through biometrics. LMIC digital ID programmes also favour centralization of identity management, and many countries, including Kenya, manage digital ID as part of national security.Footnote 7 Increasingly, the privacy and data protection elements of these programmes have been contested in national jurisdictions.Footnote 8 The potentially harmful impact of digital ID on people at risk of statelessness,Footnote 9 the elderlyFootnote 10 and children, has also been raised as a human rights concern.Footnote 11
The accessibility and impact of technologies are not gender-neutral. For example, there is a 42 per cent gender gap in mobile internet usage in Kenya.Footnote 12 African women are also not represented in the conceptualization of the data economy.Footnote 13 A 2021 report on data in Africa shows the ways in which women are excluded from data production and design processes, resulting in their invisibility in data products.Footnote 14 This is a classic feminist conundrum where solutions and services are designed without engaging with women. This phenomenon is known as the ‘sociology of absence’ in reference to technologies designed in different social settings being transplanted to resolve problems they were not suitable for, and in the process creating new problems.Footnote 15 It results in people with non-heteronormative identities being subjected to discrimination and othering.Footnote 16 This has led to fears of data extractivism, which Tamale argues is similar to previous forms of colonialism.Footnote 17
This paper advances the debate on gender and technology through an analysis of the impact of digital ID policies on women in Kenya. Recent processes of datafication in the country are built upon a colonial legacy of identity registration that is gendered and racialized. This creates tensions between the state duty to provide services, its interest in controlling the population and the role of business entities within datafication processes. Can the United Nations Guiding Principles on Business and Human Rights (UNGPs), which require states to protect and businesses to respect human rights, mitigate this tension?
The paper is organized as follows: section II discusses decoloniality; section III describes the implementation of the UNGPs; section IV addresses the international debates on digital ID; and section V analyses the value and shortcomings of the UNGPs in the context of women and digital ID in Kenya. Section VI concludes.
II. Decoloniality and Digital ID
Decoloniality theory is concerned with the restoration of life in former colonial lands, through intellectual, political, social and economic work.Footnote 18 It takes a historical continuity perspective from post-colonialism, showing how former colonial relationships manifest in spaces such as multilateral political and economic institutions, thereby maintaining a world order in which Africa remains underdeveloped.Footnote 19 Decoloniality explains why African states remain impoverished, despite the availability of natural and other resources; or why African women face poverty even though the majority actively work and support the economy.Footnote 20 Decoloniality confronts coloniality – the residual power still held by colonizers.Footnote 21 Coloniality survives through social control and, in the context of digital ID, this includes the construction of gender norms, identities, economies and knowledge production.Footnote 22
African imperatives such as collective decision-making, which included all genders,Footnote 23 and the philosophy of Ubuntu, which premises society on notions of interdependence and interconnectedness, were rarely included in post-independence constitutions, which instead privileged a Western individualist and patriarchal perspective.Footnote 24 Digitalization and datafication demand that individual subjects must personally interact with the system to get welfare support and other entitlements. However, where people do not own mobile phones (required for authentication) or migrate for work, such entitlements become inaccessible.Footnote 25
Coloniality of African identity manifests in divisive colonial legacies such as borders, currencies, languages, legal systems and political structures.Footnote 26 This has contributed to problems such as statelessness of African migrants and the marginalization of certain communities with limited access to government services.Footnote 27 Despite being African by birth and descent, the lack of Pan-African solidarity puts groups that are not considered indigenous or accepted by states where they live at risk of statelessness.Footnote 28 Stateless Africans risk becoming legally invisible as governments adopt digital ID in service delivery.
The post-colonial development industry perpetuates the problem,Footnote 29 through, for example, structural adjustment programmes, liberalized markets and reduced government investment in agriculture, healthcare and education.Footnote 30 Ironically, these are the services that now require digital ID, which the World Bank is directly financing for many LMICs.Footnote 31
The latest global development policy, the Sustainable Development Goals (SDGs),Footnote 32 which promotes digital ID, similarly propagates coloniality in several ways. It is a top-down approach constructed largely by former colonial powers and businesses. The SDGs do not focus on the root causes of inequality, such as the effects of colonialism and patriarchy as well as the risk of new colonialities being developed with the SDGs.Footnote 33 One such coloniality is private financing for the SDGs which promotes financial interests and markets over local needs and values.Footnote 34 Financing not only contributes to the bonding of the countries through debt, but also perpetuates values such as centralized identity management.Footnote 35
While digital ID could have benefits for African populations, as argued by the data justice movement and proponents of universal basic income,Footnote 36 decoloniality decries the lack of agency of people of former colonies in defining their futureFootnote 37 and in the case of digital ID, their priorities based on their needs.Footnote 38
The decolonial approach is a useful tool in analysing coloniality of knowledge, the economy and political life in Africa.Footnote 39 It helps us to reflect on ways in which digital ID projects reproduce systems of colonialism. Decoloniality is also relevant in analysing digital ID as it envisages dialogues with other frameworks as it seeks to decentre colonial structures and knowledge.Footnote 40 In this way, it takes an inclusive approach where the value of existing systems is not entirely denied but engaged with alternative viewpoints.Footnote 41
Do the UNGPs propagate or ameliorate the continuum of colonialism into the era of digital ID?
III. The UNGPs and Digital ID
The UNGPs were designed to shift the focus of corporate responsibility from shareholder interests to an expanded responsibility for all affected stakeholders.Footnote 42 The success of the UNGPs, however, is contested.Footnote 43 In the digital industry, UNGPs-inspired practices include voluntary reporting, ranking and industry guidelines.Footnote 44 Environmental, Social and Governance (ESG) reporting,Footnote 45 and anti-corruption initiatives could provide an inroad into issues of business responsibilities among businesses that are key in digital ID implementation.Footnote 46 Where these processes are open to meaningful consultation, they may provide avenues for companies to engage with people affected by digital technologies as envisaged under the UNGPs. Such engagement is recommended by other United Nations (UN) mechanisms such as the Office of the High Commissioner for Human Rights.Footnote 47 It is not clear, however, that such engagement has occurred.
Kenya has a National Action Plan on Business and Human Rights (NAP), coordinated by a Steering Committee led by the Office of the Attorney General and the national human rights institution. The NAP focuses on five thematic areas: labour, revenue transparency, environment, land and natural resources, and access to remedy.Footnote 48 While none of these areas directly relates to the digital economy, these businesses can still contribute to NAP implementation when dealing with issues of land, revenue transparency and remedies.Footnote 49
As recommended in the UNGPs Gender Guidance,Footnote 50 the Kenyan NAP refers to gender equality and women’s rights. The NAP recognizes the legacy of cultural norms which denied women property rights and educational opportunities,Footnote 51 and commits to increasing opportunities for women’s participation in business.Footnote 52 However, as discussed below, the government approaches its role in business and human rights as supervisory and fails to consider its obligations to protect human rights in state-run businesses, including those developing digital ID.
Therefore, the extent to which the UNGPs have been successful in embedding gender equality and human rights in the digital sector in Kenya, is questionable.
IV. International Debates on Digital ID
The ‘ID’ in digital ID encompasses identity (personal attributes), identification (processes and systems used in the identification of persons) and identity documents which are increasingly in the form of smart cards, chips and mobile telephone applications (apps).Footnote 53 Examples of technologies envisaged under digital ID provisions under Kenyan law include digital biometrics; location in the form of geographical positioning systems (GPS); deoxyribonucleic acid (DNA) in digital form; artificial intelligence (AI) technologies such as facial recognition; and mobile phone numbers.Footnote 54
The international development community is a key driver in digital ID programmes being rolled out in LMICs. In line with the SDGs, digital ID is viewed as the missing link towards ensuring that every person on the planet is included in development programmes.Footnote 55
Business has contributed to digital ID by supplying identity infrastructure and services such as cloud services, de-duplication algorithms and hardware like biometric readers.Footnote 56 Corporate logics underlie many of the justifications provided for digital ID programmes such as business efficiency, cost savings and modernization.Footnote 57 As a result, business recommends centralized digital ID systems for use in LMICs and migration management.Footnote 58 However, the European Union (EU) and other actors in the Global North favour decentralized systems that promise agency and freedom of movement for their citizens.Footnote 59 In addition, the European region is already formulating its frameworks for related issues such as the data economy.Footnote 60
Besides the international development community, social justice movements also have an interest in digital ID, based on the idea that the recognition of rights-holders may lead to a more equitable redistribution of resources.Footnote 61 From this perspective, digital ID will facilitate programmes such as cash transfers, and eventually, a universal basic income.Footnote 62
Digital ID programmes have been contested in many LMICs.Footnote 63 In Kenya, petitions have been lodged against the huduma namba digital ID law for failure to ensure participation by rights-holders in the process of amending the RPA, the risk of the system being used for surveillance, as well as its potential for the exclusion of marginalized groups.Footnote 64
Although the possible gendered impacts of the system were not explicitly raised in the petition, they arose in evidence. These include the impact of securitization of identity documentation where, after events such as terrorist attacks, certain marginalized communities were subjected to additional screening procedures when applying for identity documentation.Footnote 65 Such procedures expand the discretion of registration officers, making it more difficult for marginalized women to acquire identity documentation.Footnote 66 For example, single mothers who attempt to register their children without a male relative are subjected to arduous processes, and the challenges are even greater for migrants.Footnote 67 Many of these experiences are not based on the law but administrative practices adopted by registration officials.Footnote 68 Such practices demonstrate the impact of patriarchal assumptions where, for example, the government records and classifies people as part of male-headed households, clans and ethnicities. As Kenya’s digital ID is based on the analogue system, the barriers faced in acquiring citizenship documentation are similar in digital ID.
In response to some of these issues, the World Bank has developed Principles on Identification for Sustainable Development.Footnote 69 The principles call for inclusion, public participation, privacy rights and competition. They are currently the major global policy framework on digital ID. Data justice studies also provide policy recommendations in their recognition that while the inclusion of people in data economies can give them visibility, these processes must be participatory and non-discriminatory.Footnote 70
As Sylvia Tamale notes, if African women are to participate meaningfully in the digital economy, the disempowering elements of technology must be critically examined.Footnote 71 In Kenya’s case, the digital ID law lacks a gender perspective, and presumes that all people have similar experiences when engaging with government. Using the UNGPs framework, the following section highlights key issues for both the state and business in relation to digital ID using the case of women and identity documentation in Kenya.
V. Women and Identity Documentation in Kenya
The State Duty to Protect
The following discussion demonstrates the link between colonial laws, securitization and gender disparities in identity documentation in Kenya.
Colonial Legacy
The colonial law on registration of identity had various gendered impacts. Under the Native Registration Ordinance (NRO) of 1915, all African males over the age of 16 were required to register for kipande. ‘Kipande’ is Swahili for piece, and describes the identification certificate that had to be carried around in a tin around the neck, and produced on demand.Footnote 72 The singling out of men for kipande reflects the prevailing mentality at the time, where the heteropatriarchal family was instituted as a means of social control and labour.Footnote 73 Colonial settlement was organized around the white male, and women came to the colony under the patronage of men. The colonial system transposed heteropatriarchal ideals by targeting only African males for colonial labour and taxes and pushing African women into domestic and informal labour arrangements.Footnote 74 African women who were employed as household servants were issued with domestic servant passes that had to be signed by their master to facilitate movement.Footnote 75
While the NRO was replaced with the RPA in 1947, it was not until 1978 that the law was amended to include women for registration. This formally eliminated gender discrimination from the RPA. However, accounts from women show that ‘the law in the books [is] so different from the law in action’.Footnote 76 Administrative practices coupled with cultural attitudes result in disparate experiences for women seeking identity documentation.Footnote 77 The processes are even more challenging for women from marginalized groups and those from rural or under-served areas who often have to travel long distances and seek sponsorship from male relatives when applying for identity documentation.Footnote 78
The engendering of patriarchy in recording of identity explains these practices. Under the NRO, information collected during registration included one’s name and their father’s (and not mother’s) name, sub-clan, clan and ethnicity.Footnote 79 The records were organized with ethnic codes which were also closely linked to the district where a person registered.Footnote 80 This system was carried over to the post-independence era. Even when women were allowed to apply for an identity card, their records were joined to those of their male relatives.
After independence, the RPA register also became a citizenship register. A new requirement, proving one’s descent, was added to the requirements for registration. In practice, a copy of a parent’s national ID card, or their death certificate, is required for registration. While documents of either parent can be used, in some areas registration officers reject applicants who present only their mother’s identity documents, requiring proof of descent through a male relative.Footnote 81 Patriarchy is also reflected in passport and birth registration; until 2010, women could not transfer citizenship to their children if the child’s father was a foreign national.Footnote 82 The Constitution has changed thus but some registration officers continue to reject applications from children with non-Kenyan fathers.Footnote 83 Such cases are more common among lower income earners and where foreigners of African descent are involved, a demonstration of the enduring hold of colonial ideas.Footnote 84
Kipande was part of colonial population management schemes that counted and classified Africans by ethnicity and confined them to rural areas.Footnote 85 Together with movement passes, the document was key to maintaining geographical segregation, as people needed them to travel outside their ethnically demarcated regions. These documents were mostly issued to people who lived in or around colonial settlements and these areas still have better access to government offices.Footnote 86 This skewed distribution of government offices and services has gender dimensions because women typically seek these services for both their children and themselves.Footnote 87
All these experiences demonstrate how colonial policies, which excluded women, influence their access to identity documentation. Although direct gender discrimination has been eliminated from the law and the Constitution guarantees the right to identity, many people still lack identity documentation or face barriers to its acquisition because the underlying system was designed to leave them out.Footnote 88
To resolve these issues, the state duty to protect would involve dismantling the colonial system and creating a new system to ensure inclusive service delivery. From the Ubuntu perspective, recognizing every person’s humanity means that everyone should be able to access public services, even if they lack identity documentation.Footnote 89 In line with human rights-based approaches, user-responsive design should be used to ensure that government services are distributed where and how they are most needed.Footnote 90
According to statements in litigation against huduma namba, Kenya did attempt a form of due diligence in assessing the human rights impact of digital ID. The government stated that it had undertaken a data protection impact assessment (DPIA), but had not published it, arguing that it contained sensitive national security information.Footnote 91 A DPIA is similar to human rights due diligence, although focused on data processing activities.Footnote 92 In a separate suit, the high court of Kenya recently ordered the government to halt the roll out of digital ID and first undertake a DPIA.Footnote 93 The government has appealed the judgment. This case demonstrates the misalignment between state commitments to human rights and their implementation.Footnote 94
This lack of implementation of international law is symptomatic of coloniality, where many high-level agreements lack local ownership. They often require support and supervision from neo-colonial institutions and states, in the process reinforcing their power.Footnote 95 To avoid this cycle, decoloniality calls for local ownership of socio-legal transformation through methodologies such as the vernacularization of justice.Footnote 96 For example, India was initially used as the poster child for the benefits of digital ID in international development circles until local research exposed many human rights issues with the programme.Footnote 97 While these problems have yet to be resolved, the Indian experience is relevant to other LMICs. However, as discussed below, in some matters such as security, the failure of the state in its duty to protect is due to design rather than a lack of implementation.
Securitization of Identity Documentation
Post-colonial scholarship maintains that oppressive colonial systems persist because they aid African leaders to amass wealth and power.Footnote 98 This explains the case of kipande which was maintained notwithstanding opposition during colonization. A critical look at the changes to RPA shows that the identity document became an avenue for expansion of national security operations. More than 15 amendments to the RPA have resulted in the National Registration Bureau (NRB), which has police and judicial powers over identity documentation. For example, the RPA requires citizens to present themselves for registration or face criminal sanctions.Footnote 99 The NRB has the power to determine citizenship, demand citizenship documentation production, arrest people without a warrant; prosecute cases; and revoke identification documents.Footnote 100 Where citizenship is in doubt, NRB officers may require applicants to register at their ancestral location, a discretion they often exercise over people from marginalized communities.Footnote 101 Ethnic minorities also complain of being required to furnish additional documents to prove their descent.Footnote 102
These powers are set to be compounded under huduma namba which centralizes, integrates and makes interoperable all government identity systems, including social welfare services, health insurance and education records.Footnote 103 Two cases illustrate how centralization contributes to appropriation of social welfare by national security agents and the gendered human rights risks that ensue.
The first is the introduction of the national education management system (NEMIS) by the Ministry of Education with funding from the Global Partnership for Education (GPE). Schools were directed to register all learners on the system, using the birth certificate as the primary identification document, after which each child received a unique personal identifier (UPI) linked to their parents’ national identity card.Footnote 104 Without registration, children cannot access school or national examinations.Footnote 105 The directive has also led to an increase in document fraud, as people desperately try to acquire birth certificates for their children.Footnote 106 There is also increased pressure for women to obtain identity documentation, as they cannot get birth certificates for their children without the national identity card.Footnote 107 There were reports of women without identity documentation registering their own children as other people’s children or giving inaccurate data on issues such as family relations following this directive.Footnote 108
The securitization is also evident from the refugee databases jointly maintained by the Kenyan government and the UN High Commissioner for Refugees (UNHCR).Footnote 109 Kenyans who are registered in this database had accessed UNHCR-run refugee camps for food aid and other forms of assistance. In 2016, UNHCR handed over the refugee database to the Kenyan government and as a result over 40,000 Kenyans were automatically registered as refugees, and subsequently denied citizenship documents.Footnote 110 Some of these people were registered in the refugee databases as children.Footnote 111 They now face a myriad of issues, from being unable to travel within the country, obtain employment, register their children as citizens or even register a mobile ’phone SIM card, as all these functions require the national identity card.Footnote 112
These examples illustrate how the digitalization of the development sector, despite the rhetoric that this will increase the efficiency of service delivery, can have harmful human rights impacts in practice.Footnote 113
Under this security paradigm, low income, rural women and women from historically marginalized groups face additional barriers in accessing identity documentation services for their children and themselves.Footnote 114 Women who are unable to access identity documents are, as a result, ineligible for many social protection programmes. This is the case even for COVID-19 vaccination.Footnote 115
Alongside international human rights provisions envisaged in the UNGPs, critical feminist theories concerning power and its distribution provide useful insights into the ways in which the inequalities that have been engendered and entrenched through identity registration processes could be overcome in practice rather than being subsumed within securitization agendas.Footnote 116
The Corporate Responsibility to Respect
The role of business in the national identity system can be traced to the colonial period where settlers created mechanisms to identify and locate workers. These labour permits have evolved into identification and reputation systems that are being monetized in the digital era. The following discussion reflects on the gender dimensions of these systems.
Role of Business in Identification
Documentation of Africans in Kenya began with appropriation of land by white settlers. After criminalizing movement out of designated areas, passes were devised as a means of controlling Africans required for colonial labour.Footnote 117 While the system was later overtaken by kipande, settlers retained for themselves the power to track their African servants and influence their future employment opportunities. This was through endorsements on the kipande, laws requiring labourers to be cleared and recommended by their former employers.Footnote 118
Fast-forward to the digital era where businesses have negotiated access to government identity data contained in a database known as the integrated population registry services (IPRS).Footnote 119 A typical example of these interactions occurs during mobile money transactions where the transacting customer is required to produce their identity card. The card number is entered into the mobile network operator’s (MNO) system which then validates this information against the IPRS database. In the process, the MNO collects data about the transacting customer, as well as data about the transaction (metadata). Behavioural data is also collected, including the location of the transaction and amount, frequency of transactions, and average amounts transacted over a period. Such data, or financial reputation, has been used to create new business models such as digital loans, where people are able to borrow money based on their digital financial reputation.Footnote 120
Digital loans have been lauded as providing unbanked persons with access to banking services.Footnote 121 Women are often a target of financial inclusion programmes, because of their historical exclusion from formal banking and financial systems.Footnote 122 Business operations ignore the fact that women have developed their own financial mechanisms since colonial times.Footnote 123 These include use of cultural spaces for education and empowerment, and collective contributions of labour and goods, which later developed into non-collateral micro-credit systems.Footnote 124
In some ways, the business operations are in fact regressive for women. Digital products such as mobile money, airtime and loans are more expensive for low-income earners, the majority of whom are women.Footnote 125 Research also shows that women on average spend more per transaction on mobile money transactions such as sending and receiving money due to the fact that they have less access to advice on reducing transaction charges.Footnote 126
Digital lending becomes a cycle of data exchange between the government and business. Where a debtor is in default, their details are submitted to a government-regulated credit reference system that can be accessed by loan providers, affecting the cost of any future loans they may need. This has contributed to perpetual debt, where borrowers take loans in order to clear outstanding debt and avoid defaulting on their credit.Footnote 127
Financial reputation systems affect many human rights. Scholars argue that the UNGPs should be a starting point for corporate responsibility which includes socio-economic rights as well as gender justice.Footnote 128 However, there is a risk that gender-responsive human rights due diligence processes are approached by business as a ‘check box’ legal compliance measure to shield them from liability rather than a pathway towards transformative change.Footnote 129
There is a moral case for more equitable benefit sharing from the data economy where businesses that make profits from digital ID should distribute those benefits to the societies they get the data from.Footnote 130 Presently, digital ID-based businesses are distributing the risks and harms.Footnote 131
Business in Security and Identity
In Kenya, Africans have had their fingerprints taken for identification since 1920 when kipande was introduced. Besides this register, there was also a criminal records database where fingerprints of those arrested were recorded.Footnote 132 A primary reason for fingerprinting was to protect expropriated land for colonial settlers under the rationale that if all Africans could be uniquely identified, anyone caught disobeying colonial laws could be easily identified and punished.Footnote 133 The criminal records database therefore complemented other identity systems such as work passes.
The criminal records database has been used since the colonial period to provide police clearance certificates as a pre-requisite for employment, visas, public service vehicle driving licences and other appointments.Footnote 134 While there could be legitimate reasons for a person to show a clear criminal record, the colonial origins of the practice and expansion to other agencies, normalizes the business of surveillance and social control.Footnote 135
The digital era extends the symbiosis between government and business. Through laws governing areas such as mandatory SIM card registration and retention of traffic data, government mandates business to collect identity data, creating its own surveillance capability.Footnote 136 Business has also been a key actor in the construction of surveillance infrastructure. Local examples include an integrated street surveillance system with facial recognition capability supplied by Safaricom and Huawei.Footnote 137 Such arrangements complicate human rights compliance, as they blur the lines of the duty-bearers. This arises, for example, in cases where the government undertakes surveillance using systems owned by business.Footnote 138
Decolonizing security business is among the more challenging work in the digital era, as many frameworks, including the UNGPs, permit national security exceptions. The power of business in influencing regulation is also evident in ideas such as freedom of innovation which companies rely on to slow down regulation of new digital capability.Footnote 139 Feminist and pluriversalist approaches envision decentralized development and ownership of technology.Footnote 140 They also demand technology built around the needs of citizens and communities as opposed to the current centralized approaches designed from the top down by business and government.Footnote 141 These are not issues that are directly mentioned in the UNGPs but addressing them could contribute to undoing systemic inequalities.
Access to Remedy
Despite the complexities of citizenship documentation explained above, the RPA does not include transparency, accountability and governance provisions. It has no mechanism for reporting to the people or Parliament or for citizens to engage with the bureau. Access-related gaps in RPA include lack of redress for grievances such as delayed issuance of registration documents, and incorrect data as in the case of victims of double registration. There are no mechanisms for correcting or monitoring disparities in access to citizenship documentation. The most recent amendment to the RPA, which creates the digital ID system, appoints the Principal Secretary in the Ministry of Interior to be administrator and manager of the digital ID system.Footnote 142 Access to remedy under the RPA is therefore largely through petitions to public officers or litigation.Footnote 143
The more recently enacted Data Protection Act (DPA) has some inbuilt provisions on access to remedy. It requires public or private agencies that hold data to provide means through which people can know what data is held about them, request correction of incorrect data and object to data processing.Footnote 144 However, in a broader reading of the DPA, public agencies are exempted from some of the provisions of the Act, making some of these rights moot in relation to agencies such as the NRB.Footnote 145 Vulnerable and marginalized women and those without digital literacy skills are therefore not likely to be able to access these rights without assistance.Footnote 146
In addition, the DPA lists national security as a legitimate ground for data processing.Footnote 147 The implication of this provision is that national security agents can legally access, share and analyse digital identity data without reference to the data subject.
Even if the law was to enhance means of accessing rights, experiences regarding access to remedy show that the ubiquitous and remote nature of digital ID makes it difficult to locate harms arising from data processing. An example from a social protection programme in South Africa is illustrative. In 2012 the South African Social Security Agency (SASSA) contracted a private company Cash Paymaster Services (CPS), a subsidiary of another company Net1, to assist in the cash disbursements of social welfare grants. The programme covers people who are unable to provide for their basic needs and impacts directly on women in their own right as well as in their role as caregivers of children.Footnote 148 CPS undertook biometric enrolment of welfare beneficiaries, and shared the data with Net1 and a third-party bank. Net1 subsidiaries later developed products such as loans and funeral policies from which deductions were made from beneficiaries’ disbursements without their consent. Financial reports showed that Net1 had accrued massive profits from the cash disbursement deal.Footnote 149 Non-governmental organizations exposed the human rights impacts of the deal and they instigated litigation which resulted in the welfare beneficiaries being released from the unfair contracts.
Notably, one of the investors in Net1 was the International Finance Corporation (IFC), an arm of the World Bank. Because of the remoteness of investors particularly in multinational scenarios as is the case here, it is difficult for people affected by the actions of Net1 to seek redress from the IFC. However, business and human rights scholars have, using a responsible investment perspective, underscored the role of investors in keeping watch over their investments throughout the life cycle.Footnote 150
Further to the UNGPs’ calls for access to judicial and other remedies, a cure to the gendered effects of identity documentation would include delinking of identity from colonial security practices such as policing of identity documentation, criminal offences related to lack of identity documents and the discretionary determination of issues such as citizenship by registration officers.
VI. Conclusion
The historical exclusion of women from identity registration in Kenya, coupled with institutionalized patriarchal identity recording continues to impede their access to identity documentation. Instead of addressing this power imbalance, digital ID increases the role of the state in the life of every person through identification and authentication for access to public and private services. Digital ID also advances corporate power, and with capabilities such as surveillance, further disempowers historically marginalized groups such as women.
The UNGP mechanisms such as human rights impact assessment of digital ID are an important avenue for mitigating gendered aspects of state and corporate power. However, they do not sufficiently address colonialities created by digital ID.
Acknowledging the coloniality of digital ID systems is useful in shifting the systems from their current centring on the interests of the state to service of the people. To this end, implementation of the UNGPs needs to go beyond international human rights to other sources of justice. In Kenya’s case, for example, while references to gender equality through registration of women are welcome, gender equity through valuing of women’s ideas such as non-collateral loans, as well as the data they produce through digital ID programmes are also required. Gender equity also extends to designing digital ID that is sensitive to women’s realities such as their role in getting identification documentation for their children.
Despite their important influence in global development, the UNGPs only address multilateral development institutions indirectly through member states.Footnote 151 There is a presumption that states and multilateral institutions are only guided by human rights and not other interests, including those of former colonial powers.Footnote 152 Implementation of the UNGPs should challenge this power more directly by requiring greater accountability of these institutions.
A rallying call in decoloniality discussions is for unity and solidarity among people in the Global South to define their development.Footnote 153 Just as this discussion has drawn on examples from India and other countries in the Global South, the experiences from Kenya are shared to expose the gendered dimensions of identity documentation before and after digitalization. They provide warnings on the structural inequalities that new technologies may exacerbate.
Conflicts of interest
The author declares none.
