The Regulatory State in the Age of Digital Identity and Technosolutionism in Africa

By: Ngozi Nwanta; JSD Candidate, NYU Law School; JSD Fellow, NYU Information Law Institute; Co-Chair, NYU African Law Association; Recipient, NYU Africa House Thoyer Fellowship Award

Who we are and how we can be identified, especially within a state, has become a very important discussion in developing countries, particularly within the frame of economic growth and sustainable development. Over 1 billion persons have been categorized as invisible in the world, of which about 437 million persons are reported to be from sub-Saharan Africa. In West Africa alone, the World Bank has identified a huge “identification gap” and different identification projects are underway to identify millions of invisible West Africans. These individuals are regarded as invisible not because they are unrecognizable or non-existent, but because they do not fit a certain measure of visibility that matches existing or new database(s) of an identifying institution, such as the State or international bodies.

With the increased relevance of data, many development finance institutions have predicted that the collection and use of personal identifiable information of data subjects in a country is crucial for efficiency and development. Hence, in recent years, several African countries, with funding from the World Bank and other financial institutions, and relying on the Indian Aadhar identity model, have embarked on identification projects that would confer digital identity on individuals. These identification projects are embarked on with the promise of increased efficiency, improved security, better administrative output, financial inclusion, improved healthcare and increased local and international trade. Nonetheless, these identification projects come at a great cost to individuals and can potential stifle development because the focus of the states have largely been on reliance on technology to resolve more deep-rooted societal, institutional and developmental challenges - technosolutionism.

My research evaluates the identification regime in some Africa and identifies the harms that it poses to the regulatory state in an information age propelled by big data, artificial intelligence and machine learning. In the industrial age, it suffices to protect the information database in order to prevent loss of data. However, in the information age with high performance information collection, processing and use technologies, the regulatory state is faced with enormous responsibilities of protecting and regulating the individual, the data, the data processors/analysts, and the infrastructures of collection, use, processing, maintenance and storage of data, both within the state and transnationally. Thus, the regulatory state has an overarching responsibility to ensure that in introducing any identification regime, it has the capacity to regulate/curb the systemic harms associated with information flow, prevent exclusion that may arise from non-identification, misidentification, or over-identification of individuals, distinguish the identity of individuals from their means of identification, protect the existing human and social rights of individuals, and establish the adequate legal and political infrastructure to regulate and manage the information flows. These obligations, currently not fulfilled in many African States, exceed the State’s function of making regulations and draws upon a capacity-heavy role of regulation, management, and oversight of individuals, personal data, institutions (both local and international), and information technologies. Through the funding made available under the Thoyer Fellowship, this research would have necessitated visits to the identity management commissions in Nigeria and Kenya. However, as a result of COVID-19 restrictions, I relied heavily on data, documents and publications obtained through the internet.