The accountability and rule of law framework element contributes to ensuring that the digital identity system, and its management and impact, are accountable and subject to the rule of law.Back to Framework
It assesses the extent to which the system provides for the possibility of correcting errors and exclusions, and for remedy and redress, including those relating to private sector actors. The sub-elements assess the appropriate oversight from both independent and judicial institutions as well as resources to support recourse to legal redress. The specific sub-elements that this element includes are administrative review and appeal, independent oversight, judicial oversight, access to legal advice and remedies.
Administrative review and appeal
Correction of data
Is a person who wishes to change /correct details registered in the digital legal ID system able to get those details changed?
Within what time period?
When data about a person is incorrect, it needs to be rectified otherwise such inaccuracies in the digital ID system leads to exclusion from services and rights.
A clear protocol is established to correct the vital event records depending on the nature of the correction, e.g., if there is a clerical error which can be corrected by civil registration officers, or changes are required due to vital events that has legal implications which require the intervention of a court.
For this section, see in general web resource on the United Nations and the rule of law: https://www.un.org/ruleoflaw
UN General Assembly. ‘Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels’. A/RES/67/1. New York: United Nations, 30 November 2012. https://www.un.org/ruleoflaw/high-level-meeting-on-the-rule-of-law-2012
SDG target 16.3 Promote the rule of law at the national and international levels and ensure equal access to justice for all.
See also IOM Institutional Strategy on Legal Identity, section 5: Implementation Safeguards: https://publications.iom.int/books/iom-institutional-strategy-legal-identity
UN Public Administration Network Principles of Effective Governance:
See also: European Code of Good Administrative Behaviour:
OECD/EU Principles of Public Administration: https://www.sigmaweb.org/publications/principles-public-administration.htm
UN Department of Economic and Social Affairs statistics in 'Guidelines on the Legislative Framework for Civil Registration, Vital Statistics and Identity Management Systems' (2023): https://unstats.un.org/unsd/demographic-social/Standards-and-Methods/files/Handbooks/crvs/CRVS_GOLF_Final-E.pdf
Appeal within ID management agency
If a person is denied enrolment, or the ability to correct data, is the refusal recorded in writing, with reasons for the decision, and notified to the applicant?Is there a right to administrative review within the responsible agency established in the law governing the ID?Is there a right to be heard? Are these recourse systems accessible and used in practice?
When a low-level decision is taken by a person with higher levels of training and discretion, this can provide a rapid and low-cost system of recourse. When a person is refused enrolment and this decision is communicated, it provides a person with the ability to challenge such a decision enabling them to understand the reasons for such a decision.
Administrative review processes are clearly established in regulations and official policy, and these are publicised at all offices.
UN Principles for Responsible Digital Payments, p. 91 Recourse Recommendations: https://responsiblepayments.org/pdfs/UN-ResponsiblePayments.pdf#page=91
Application to private sector
How do rights to administrative appeal apply to private sector bodies involved in the ID system?
If the private sector plays an important role in managing the system, it is important that it is also covered by accountability procedures.
Contracts with the private sector require a review, sanction and appeals process to be established to govern the procurement and contracting with private sector providers.
UN OHCHR 'Guiding Principles on Business and Human Rights' (2011): https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf
Existence of independent oversight bodies
What institutions exist established by law (constitution or legislation) that have the mandate for independent oversight of executive decisions relating to the digital legal ID system (e.g., human rights commissions, ombuds, specific identity commissions, data protection commission)? Are these bodies generally regarded as being sufficiently independent and having sufficient powers to exercise their role?
When independent oversight bodies are set up and provided with a sufficient budget, they can proactively monitor the performance of the executive and report on systemic problems, as well as providing individual redress.
An independent oversight body is established with relevant and inclusive representation. For example, it could include representatives from CSOs, ethnic minority groups, human rights commissions, data privacy, and protection groups, and researchers to analyse and study the impact and policies of the ID nodal and regional authorities. The oversight authority is empowered to hear individual complaints arising from the operation of the digital legal ID system, and it has the authority to order the agency responsible for digital legal ID to provide individual redress and to change its policies and practices.
UN OHCHR 'Principles Relating to the Status of National Human Rights Institutions (The Paris Principles)' (1993): https://www.ohchr.org/en/instruments-mechanisms/instruments/principles-relating-status-national-institutions-paris
International Ombuds Association Standards of Practice and Code of Ethics: https://www.ombudsassociation.org/standards-of-practice-code-of-ethics
Ability of courts to rule; accessibility of courts
Are all decisions made in relation to identification and issue of identity documents subject to appeal or review by the regular courts, without any exclusions (e.g., national security)?
Any person affected by a decision in relation to an digital legal ID system should have the right to seek redress in court, in line with general principles of access to justice.
There is no exclusion of the digital legal ID system from general oversight of the courts. An independent oversight mechanism is also empowered to file public interest litigations in regular courts. Judges are trained in the technology of the identification system and the options for different design models.
International Covenant on Civil and Political Rights Art 14: Venice Commission of the Council of Europe 'Rule of Law Checklist', chapter E on Access to Justice: https://www.venice.coe.int/images/SITE%20IMAGES/Publications/Rule_of_Law_Check_List.pdf
Access to legal advice
Legal and paralegal assistance
Is there access to low-cost paralegal or legal assistance to challenge maladministration? Can residents and citizens get advice and assistance to help them to challenge problems in registration or certification or authentication of identity?
Free or low-cost legal assistance contributes to protecting the rights of individuals whose case needs to be addressed in the judicial system.
Paralegal and legal assistance - staffed by personnel trained in the specific issues - is provided free of charge to those who are unable to resolve issues with establishing digital legal ID.
The Hague Convention of 25 October 1980 on International Access to Justice: https://www.hcch.net/en/instruments/conventions/full-text/?cid=91
Civil society support
Are civil society organisations able to advocate on a person or community's behalf?
If civil society organisations can advocate on behalf of individuals affected by digital ID, they are more likely to be responsive to public needs.
A person is able to have their record /ID document corrected and provided with compensation for harm, etc.
International Covenant on Civil and Political Rights, Article 21: Freedom of Association: https://www.ohchr.org/sites/default/files/ccpr.pdf
Access to remedies in case of harm caused by the ID system (whether these are inherent to the system or if the system has not been implemented as intended in practice).
What remedies are available for someone adversely affected by the ID system? In law, in practice?
A person is able to have their record /ID document corrected and compensated for harm, etc.
The legislation establishing the digital legal ID specifically provides for remedies in case of harm; failing that, there is a public official statement by the ID authority on the principles of remedy.
In relation to serious violations, see UN OHCHR 'Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law' (2005): https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-and-guidelines-right-remedy-and-reparation
More generally, see OECD/EU Sigma 'Principles of Public Administration': https://www.sigmaweb.org/publications/principles-public-administration.htm