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By Isaac Rutenberg

The Hansard for the Miscellaneous Amendment Act 2018 makes for very interesting reading. On 7th August 2018, Parliament debated proposed amendments to the Registration of Persons Act that would create the National Integrated Identity Management System (NIIMS, a.k.a. “Huduma Namba”).

Many Parliamentarians questioned the legality and wisdom of introducing NIIMS via the Miscellaneous Amendment process. Said Hon. Robert Mbui:

this [bill] is basically meant to deal with minor amendments to various laws. It also helps us to save time. I have gone through the Bill and I have seen quite a number of major amendments. The amendments are basically good and a lot of them seek to add value to the laws that exist. It is unfortunate that they have come as omnibus; they have all come together, so they may not receive the kind of attention that they require. I have picked about five amendments that I think are major and require a lot of deliberations. The first one is the amendment on the registration of persons.”

Similarly, said Hon. Ronald Tonui:

I normally assume that the Statute Law (Miscellaneous Amendments) Bill normally takes care of minor corrections in Acts but in this one, massive proposals have been put forward that we ought to amend. Many of them may be unconstitutional in nature.”

Hon. (Dr.) Wilberforce Oundo similarly agreed:

The basic and straightforward reading of the term “miscellaneous” or “minor amendments” should surely be done to rectify clerical and typographical issues or to align an Act of Parliament to any political or constitutional dispensation or any changes in some Acts that touch on that particular Act. What we have here touches close to 60 Acts, making it practically impossible for any reasonable Member to literally review, interrogate and make reasonable comments in respect of each and every Bill. The time allowed is not adequate.”

Notwithstanding such objections, the process continued. On 14 November 2018, Parliament held further Committee debates, this time specifically about two proposed amendments: the deletion of s.9(1) from the Registration of Persons Act, and the insertion of proposed section 9A.

You may recall that s.9(1) provides the basis for issuance of the National ID card. Also recall that s.9A is now the basis for NIIMS and Huduma Namba, at least unless/until a bespoke Huduma Namba act is passed.

A proposal was made by Hon. (Ms.) Odhiambo-Mabona (“Millie”) to delete “it” from the bill, and this proposal was passed by the Committee. Immediately after the vote, however, there ensues a debate as to what “it” was – in other words, there was substantial confusion as to what was deleted from the Miscellaneous Amendment Bill. From this blogger’s reading, it seems that Hon. Millie Odhiambo intended to propose deletion of new section 9A from the bill. Her proposal, however, was misunderstood. Instead, the proposed deletion of s.9(1) was itself deleted from the bill. The result of this was that s.9(1) remained in the primary Act, and s.9A was also added to the primary Act, even though these two sections were not intended to coexist under the original version of the Miscellaneous Amendment Bill. This misunderstanding begs a question: did those voting to accept Millie’s proposal believe that they were voting to remove s.9A from the Miscellaneous Amendment Bill?

The curious events of 14 November 2018 were re-committed to the Committee of the Whole House in a session on 20 November 2018. In re-committal, the deletion of s.9(1) was dropped, and it does not appear that Hon. Millie Odhiambo made any further statements on the matter.

In the end, s.9(1) remains and new s.9A was added to the Registration of Persons Act. This blogger sees no inconsistency among the two sections, if one assumes that the Huduma Namba replaces the current National ID.

Incidentally, Hon. Millie Odhiambo’s reasons for seeking to delete NIIMS from the Miscellaneous Amendment bill are interesting:

If you look at what is proposed in this amendment you realise that it is seeking to have an integrated identity management system that is very complex, that will be getting information from members of the public. When we are an advanced society, it is a very good thing. I am just wondering whether it is possible given the disparities that we have in the country. The other reason I am very skeptical about this is that the kind of things that are being proposed here would require substantive legislation. You can even see how the issues that are being proposed are contentious. People are talking about issues of privacy which are constitutional; issues of whether we are at the same level; and, the kind of information that is required. Would we have them in parts of the country? Do we not have them? It is unfortunate that we did not have – I do not know if it was there –the harmonisation committee. Those are some of the things I would have wished to propose. Because of that, I propose that it be deleted.”

Several parliamentarians stated that section 9A concerns the national census. This is notable because NIIMS and the census are obviously not the same – they are authorized by different laws, and have different purposes. The fact that they are confused in Parliament indicates the lack of understanding of the amendment that was made to authorize NIIMS. This further supports the position, held by many parliamentarians, that a more thorough debate should have been held over the creation of NIIMS.

Finally, it is interesting to note that on 20 November 2018 Parliament also considered adding “telephone number and email address” into s.5 of the Registration of Persons Act (which section provides the particulars that are to be kept in the national register of persons). The amendment was rejected. Nevertheless, telephone numbers and email addresses were requested during the Huduma Namba mass registration exercise.