Myanmar: Human Rights Analysis of Biometric Digital ID Systems disability and agricultural activities, but not race or religion, along with fingerprints and a photograph.99 In January 2020, the Kenyan High Court issued a constitutional judgment on NIIMS, halting its implementation until the government enacted a comprehensive regulatory framework, in particular relating to personal data protection.100 The Kenyan High Court thus went further than India’s Supreme Court.101 Kenya did enact a Data Protection Act in 2019, which the Court found reflected “most of the applicable data protection principles” but still needed implementing regulations, accompanied by effective implementation and enforcement.102 The Court also expressed concern about data breaches and the need for strong security safeguards to protect data collected as part of the programme, stating: “It is our conclusion therefore that all biometric systems, whether centralised or decentralised, and whether using closed or open source technology, require a strong security policy and detailed procedures on its protection and security which comply with international standards.”103 The Court did not find that NIIMS violated any equality or anti-discrimination standards, citing insufficient evidence, but it acknowledged that segments of the population might potentially be excluded (such as those who lack documents or biometrics). Accordingly, it emphasised the need for a clear regulatory framework to address the possibility that NIIMS would effectively be required to obtain social services, and the risk of some people being excluded.104 In practice, civil society groups have reported discrimination occurring throughout the ID distribution process, which involves a vetting committee with significant discretionary powers. Ethnic and religious minorities faced additional barriers when applying for biometric IDs and some were rejected outright; overall, ten percent of those who applied for a digital ID via NIIMS were denied due to lack of documentation.105 This raises serious exclusion and discrimination concerns should Kenya proceed to link digital IDs to a range of other services, as it plans to do. In addition to satisfying the data protection concerns of the Supreme Court, Kenya may need to rethink the system for granting Kenyans digital IDs. Open Society Justice Initiative, Kenya’s National Integrated Identity Management System, March 2020, p. 2. Available at: https://www.justiceinitiative.org/uploads/477c2588-00eb-4edd-b457-bf0d138fd197/briefing-kenyaniims-03232020.pdf. 100 Nubian Rights Forum v. Attorney General, High Court of Kenya at Nairobi, Constitutional and Judicial Review Division, Consolidated Petitions No. 56, 58 & 59 of 2019, 30 January 2020. Available at: http://kenyalaw.org/caselaw/cases/view/189189/. 101 Privacy International, Kenyan Court Ruling on Huduma Namba Identity System: the Good, the Bad and the Lessons, 24 February 2020. Available at: https://privacyinternational.org/long-read/3373/kenyan-court-rulinghuduma-namba-identity-system-good-bad-and-lessons. 102 Nubian Rights Forum v. Attorney General, note 100, paras. 1036-1037. 103 Ibid., para. 883. 104 Ibid., para. 1045. 105 Wired, Digital IDs Make Systemic Bias Worse, 2 May 2020, available at: https://www.wired.com/story/opiniondigital-ids-make-systemic-bias-worse/; and The New York Times, Kenya’s New Digital IDs May Exclude Millions of Minorities, 28 January 2020, available at: https://www.nytimes.com/2020/01/28/world/africa/kenya-biometricid.html. 99 - 17 -