Getting a National ID, the universal Kenyan rite of passage, has just been tapped as a money-earner by the Kenya Kwanza government. According to a (revoked after public outcry) error-filled Gazette Notice signed by Prof. Kithure Kindiki, the Cabinet Secretary for Interior and National Administration, the State Department for Immigration and Citizenship Services intended to charge Kenyans who have turned 18, KSh 1,000 for a national identity (ID) card (now reversed downwards to KSh 300).
I know the government needs the cash but this was overreach and fundamentally an unreasonable limitation on the Article 12 constitutional entitlement to the ID card. Registering its citizens is a primary function of the modern State not a cost sharing service. It is a basic function to be performed out of taxes just as paying the salary of the President, the Judges, the Legislators and the army. Every citizen, including the indigent, is entitled to an ID card. It’s a dumb idea to charge fees to register your own citizens in an impoverished population. You will wind up distorting the information base on which modern government functions and wind up completely unable to plan because you don’t have accurate data on your adult population.
Fees can, and should be charged for processing replacements (as proposed in the same Gazette), but the first ID card is an entitlement which democratically should be issued free of charge by the State as a constitutional obligation because “every citizen is entitled to a Kenyan passport and any document of registration or identification issued by the State to citizens.”
Some will read Article 12, notice that a passport is also listed as an entitlement of citizenship and reason that since passports are issued at a fee (no less than KSh 4,500 at the moment) then why should we object to paying KSh 1,000 for an ID card? I’ll try and differentiate between the two documents.
The ID is a sui generis document of citizenship. There is no other document that by law is required to be possessed by every single Kenyan above the age of majority. Unlike for a passport, registration for an ID is both an entitlement and an obligation under Kenyan law. The ID is the primary document of citizenship. There is simply no way to function as an adult Kenyan citizen without one as there are ubiquitous requirements to produce an ID for employment, education and even to receive government services. So we should understand that although ID cards are mentioned in Article 12 together with the passport, they are not akin, serving two very different purposes and are entitlements of two different types of Kenyans. I will have a need for an ID every day of my adult life, but have no reason ever to apply for a passport unless I need to travel.
Because many have used passports to identify themselves when voting, they might assume that there is no difference between a passport and a national ID card. But using the passport during elections as an ID is a legacy phenomenon from the 1997 IPPG pre-election pact which sought to correct the failure by the State to issue national identity cards to eligible voters which led to the effective disenfranchisement of an estimated 1.5 to 2.5 million voters.
The passport is merely a travel document and globally these are issued upon application for a fee. There is no legal requirement or obligation to apply for a passport. If you are a Kenyan citizen over 18 years of age you can go to jail for not applying for an ID. There is a legal obligation to register yourself as a Kenyan citizen and the Registration of Persons act gives you 90 days to register or become “liable to a fine not exceeding fifteen thousand shillings or to imprisonment for a term not exceeding eighteen months or to both.” You can’t be fined or jailed for not having a passport.
In law and fact the passport is not used by the government to determine citizenship – or rather it should not be used thus. A recent departure from this logical and factual principle was the ludicrous 2018 attempts by Fred Matiang’i, former Cabinet Secretary for Interior and National Administration, to revoke Miguna Miguna’s Kenyan citizenship by birth merely because Miguna has been travelling for a decade or so on a Canadian passport.
Hitherto, the State has never attempted to charge a fee for registration of adult Kenyans. But that does not mean it can’t – the Minister has the power under section 16 of the Registration of Persons Act. But I believe the State shouldn’t charge a fee for initial registration; a slight difference from can’t. Strenuous revenue raising efforts may explain why the State Department for Immigration and Citizenship Services decided at this time to impose a KSh 1,000 (now KSh 300) user fee for first time ID registration. No such fee has been charged since 1979 when universal ID registration came into force, and certainly not since 2010 when the entitlement to an ID was written into our Constitution as part of the Bill of Rights.
This ultimately will be decided by the courts but in my view the new fee will discriminate between Kenyans and in effect introduce a money test to a citizenship entitlement. It would have disenfranchised those who couldn’t afford the KSh 1,000 fee and created a second class unregistered adult population. Just as in 1997, it would have affected voter registration adversely. Surely, this goes against all informed advice for reasons of provision of services, and even national security.
The State should not introduce money as a new limitation on the entitlements due to Kenyan citizens who have the right to obtain a national ID at the age of 18 years, at the State’s or taxpayers’ expense. This regulation should be opposed at public participation by anybody who can attend the meetings.
