A queue at the Department of Immigration Services Passport control office at Nyayo House in Nairobi for application and renewal of passports on May 21, 2018.
| Evans Habil | Nation Media GroupNews
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Immigration says ‘No’ to Huduma Bill
What you need to know:
- The Bill proposes far-reaching amendments on nine laws, among them the Kenya Citizenship and Immigration Act.
- The Independent Electoral and Boundaries Commission (IEBC) earlier this month also rejected the Bill.
The Immigration Department yesterday became the latest government agency to reject the proposed Huduma Bill 2021, saying it will be a blunder to implement it in its current form.
The Immigration Department made its position on the government-sponsored Bill clear as it presented its views to the Administration and National Security Committee of the National Assembly, which held public participation on the Bill yesterday. The committee is chaired by Teso North MP Oku Kaunya.
The Bill, which bears the signature of the leader of majority, Mr Amos Kimunya (Kipipiri), proposes far-reaching amendments on nine laws, among them the Kenya Citizenship and Immigration Act that establishes the Immigration department.
Mr Robert Aswani of PricewaterhouseCoopers (PWC), who led the Immigration delegation to oppose the Bill before the committee, said the proposed law was unconstitutional and that if it becomes law in its current form, it will diminish the gains made in the Immigration department.
“This Bill is a recipe for chaos. It will be a blunder to have it enacted in its current form,” said Mr Aswani in a memorandum on the Bill to Parliament.
The Bill seeks to establish the National Integration Identity Management System (Niims), a central database where government agencies and other entities can access the database in the provision of services to the people.
The Independent Electoral and Boundaries Commission (IEBC) earlier this month also rejected the Bill, saying its proposals to have the voter register embedded and as part of Niims took away the electoral commission’s independence and role.
What is irking the Immigration Department is the fact that the Bill seeks to remove the whole Directorate of Immigration services, including abolishing the position of director-general of Immigration and replacing its officers with Niims officers.
It proposes to establish a Niims coordination committee where the director-general of Immigration is not included, despite the vital role the office plays by being in charge of citizenship and immigration matters.
Operational challenges
The Bill is pushing to have the power of the director-general taken over by the principal secretary in charge without the participation of stakeholders.
This is notwithstanding the position of the director-general Immigration is an office created by the Public Service Commission (PSC), and approved by the Salaries and Remuneration Commission (SRC), which are constitutional commissions.
“This Bill allows the principal secretary in charge to take over the administrative and operations of Niims. This is unconstitutional,” says Mr Aswani.
The memorandum by Immigration warns that the Bill will bring operational challenges as it “purports to lump together government agencies whose functions are separate and distinct”.
Apart from providing enrolment into Niims, the Bill assigns Huduma Namba and issuance of legal identity documents, facilitates the registration of births and deaths, and promotes efficient delivery of public services.
This proposal has, however, been opposed by the Immigration Department, which says that Huduma Namba cannot be a primary document on which other documents are premised.
Other than the Kenya Citizenship and Immigration Act, the Bill also proposes changes to the Elections Act, where the electoral commission will be mandated to use the Niims database to come up with a voters’ register.
The other laws targeted by the Huduma Bill are the Interpretation and General Provisions Act, Tax Procedures Act, Refugees Act, National Hospital Insurance Fund (NHIF), Marriage Act, Children’s Act and the Traffic Act.
Intrusive and retrogressive
The proposal to replace immigration officers with Niims officers will likely negatively impact the careers of the officers, potentially leaving Kenya the only country in the world without a professional immigration service.
This is notwithstanding that the functions of immigration all over the world, including the best practices that Kenya has borrowed from, such as the United Kingdom, are viewed in the purview of national security.
This means that immigration officers are therefore, law enforcement officers.
For instance, the United Kingdom Terrorist Act of 2000 designates counter terrorism officers as immigration officers.
“The scope of immigration officers goes beyond the national population register and thus it is a miscalculation to replace an immigration officer with the Niims officers. The Bill makes an assumption that immigration officers' function only relates to issuance of passports,” says the Immigration Department memorandum.
A joint memorandum on the Bill filed in Parliament by Musyoki Mogaka and Company Advocates and Danstan Omari Advocates, terms the Bill unconstitutional.
They say the Bill is “intrusive and retrogressive to the extent that it purports to limit or remove the office of the Directorate of Immigration Services”.
“The Bill promotes impunity and is discriminative in public governance and violates Article 10 of the Constitution on good governance as a national value,” reads the memorandum.
The two lawyers argue that the Bill takes away the gains made in the immigration services in an attempt to introduce the “rule by law instead of the celebrated doctrine of the rule of law”.
Immigration functions
“It is thus an affront to human rights and fundamental freedoms as the appropriate approvals or deliberations were never done at all in evaluating the scope of immigrations, roles and professional characterisations of the personnel involved,” the memorandum says.
The document further notes that the Bill is not driven by patriotism, national unity, devolution of power, the rule of law, democracy, equality, good governance, transparency and accountability.
In the absence of the directorate of immigration, immigration services shall be performed ‘at the pleasure of a few unsupervised individuals’, the memorandum says.
According to Mr Omari, a lot of other immigration functions have little or no relation to the population register (Niims) and “thus no justification exists to remove the directorate of immigration systems.”
Some of these functions include issuance of permits, permanent residence, and citizenship done by a statutory committee that vets and considers applicants.
There is also visa issuance, which involves statutory procedures that are involved in consideration at the application stage.
In terms of the border management, the existence of Joint Operation Centres (JOCs), Border Management Committees (BMCs) have no relation with the population register.
“Immigration enforcement is completely separate from Niims as provided under the Kenya Citizenship and Immigration Act and which entails arrest, searches, prosecution, repatriation and deportation, among others.”
The Security Laws Amendment Act, changed the Kenya Citizenship and Immigration Act to establish the border control and operations coordination committees and the border management secretariat whose functions are completely separate from Niims.