Digital Identity and the Right to Privacy: Perspectives from Africa and Asia

Abstract

As digital identity systems become integral to national governance and service delivery, concerns about privacy, surveillance, and digital exclusion are growing. This paper explores how digital identity programs in Africa and Asia balance the benefits of improved access and state efficiency with the protection of individual privacy rights. By examining case studies from India (Aadhaar), Kenya (Huduma Namba), and Nigeria (NIN), the paper assesses how legal frameworks, technological infrastructures, and institutional safeguards vary across contexts. The findings highlight the need for comprehensive data protection laws and transparent governance to ensure digital identity systems respect fundamental human rights.

1. Introduction

Digital identity (DI) systems — state-sponsored programs that assign unique digital identifiers to individuals — are becoming central to governance in the Global South. Promoted as tools for development, financial inclusion, and efficient public service delivery, they are often implemented with support from international agencies and tech firms. However, these systems also raise critical concerns about data privacy, surveillance, exclusion, and informed consent, especially in contexts with weak legal protections or histories of authoritarian governance.

This paper investigates the implementation and implications of digital identity systems in selected African and Asian countries, focusing on the intersection between digital infrastructure and human rights.

2. Conceptual Framework: Digital Identity and Privacy Rights

Digital identity is the electronic representation of an individual used to authenticate or access services. It can include biometric data (fingerprints, iris scans), demographic data (name, age, gender), and unique numbers.

Privacy concerns emerge when:

• Consent is not meaningful or informed.

• Data is centralized, making it vulnerable to breaches or misuse.

• Legal safeguards are absent or unenforced.

• Usage scope expands without user awareness (“function creep”).

According to international norms (e.g., UN Guiding Principles on Business and Human Rights; ICCPR Article 17), privacy is a fundamental right that should guide all data collection and processing efforts.

3. Case Studies

3.1 India – Aadhaar

India’s Aadhaar program is the world’s largest biometric digital identity system, covering over 1.3 billion people. It is mandatory for accessing subsidies, bank accounts, and even mobile SIM cards. While Aadhaar has improved service efficiency, it has drawn criticism for:

• Weak data protection laws (until the passage of the 2023 Digital Personal Data Protection Act).

• Exclusion of marginalized groups due to biometric failures.

• Function creep and surveillance concerns (e.g., linking with voter ID, bank accounts).

In Justice K.S. Puttaswamy v. Union of India (2017), the Indian Supreme Court declared privacy a fundamental right but upheld the legality of Aadhaar under certain restrictions.

3.2 Kenya – Huduma Namba

Kenya’s Huduma Namba (National Integrated Identity Management System) aimed to consolidate personal data into a single digital ID. However, a 2020 High Court ruling found it lacked a data protection framework and posed risks to privacy and inclusion.

Civil society groups, such as the Kenya Human Rights Commission, raised concerns over:

• Biometric overreach.

• Lack of informed consent.

• Risk of ethnic profiling and exclusion.

Kenya passed a Data Protection Act in 2019, modeled on the EU’s GDPR, but enforcement remains uneven.

3.3 Nigeria – National Identity Number (NIN)

Nigeria’s NIN system, mandated by the National Identity Management Commission (NIMC), has been criticized for:

• Weak transparency and lack of public consultation.

• Exclusion of rural populations and women with limited digital access.

• Unclear safeguards against misuse by state agencies.

Despite these concerns, NIN is increasingly required for SIM cards, financial services, and even access to public exams, raising questions about proportionality and necessity.

4. Analysis: Common Themes and Divergences

Issue	India	Kenya	Nigeria
Legal Framework	Weak until 2023	Data Protection Act (2019)	Fragmented and weak
Consent Mechanisms	Often opaque	Minimal	Lacking transparency
Biometric Use	Mandatory	Mandatory	Mandatory
Inclusion Risks	Biometric mismatch	Ethnic and geographic exclusion	Gender and rural divide
Public Oversight	Strong judiciary	Some civil society activism	Limited accountability

All three countries share challenges in balancing state efficiency with privacy protections. Legal gaps, lack of transparency, and top-down implementation models are recurrent issues.

5. Policy Recommendations

1. Comprehensive Data Protection Laws: Align with international standards (e.g., GDPR) to provide legal certainty and protect user rights.

2. Independent Oversight Bodies: Establish data protection authorities with real enforcement power.

3. Public Consultation and Transparency: Involve communities in the design and rollout of digital identity systems.

4. Decentralization and Data Minimization: Avoid central databases vulnerable to breaches; collect only what is necessary.

5. Redress Mechanisms: Provide clear channels for individuals to file complaints or opt out.

6. Conclusion

Digital identity systems in Africa and Asia reflect both the promise and peril of digital governance. While they offer tools for inclusion and modernization, they also risk undermining privacy, reinforcing exclusion, and enabling state overreach if not anchored in strong legal safeguards. A rights-based approach to digital identity — centered on consent, accountability, and transparency — is essential to ensure that digital progress does not come at the cost of fundamental freedoms.

References

Centre for Internet and Society. (2018). Aadhaar: Surveillance and exclusion.Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India).Kenya High Court. (2020). Nubian Rights Forum & others v. Attorney General & others.Kenya Human Rights Commission. (2021). The implications of Huduma Namba on privacy.National Identity Management Commission (NIMC). (2021). Policy brief on NIN implementation.UN Human Rights Council. (2019). The right to privacy in the digital age.World Bank. (2022). Digital Identification: A Key to Inclusive Development.United Nations. (2011). Guiding Principles on Business and Human Rights.