Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR unjustifiable limitation to the right to privacy; (d) Whether NIIMS complies with the peremptory constitutional principles of transparency, accountability, and verifiability and whether it is secure for its intended purpose. Whether the personal information collected is excessive, intrusive, and disproportionate. 706. There were two limbs of arguments raised as regards this issue. The first limb was that the provisions for collection of biometric data by the impugned amendments was intrusive and unnecessary. The 1st Petitioner in this respect urges that DNA and other forms of biometric data are listed by the impugned amendments, without justification or limitation, which clearly contravenes the principle of data minimization. That this is so particularly given that NIIMS is being populated without DNA, and the government has publicly stated multiple times that it lacks the capacity to store this data and to process it. 707. Further, that the Digital Data Capture Form used to gather biographical information is extremely detailed and extensive. The 1st Petitioner submits that in the context of general collection of biometric data outside of the criminal law context, it is likely to result in violations of fundamental rights unless there are very strict and rigorous safeguards. This is for the reason that once there is a breach of the database, the information taken is unlikely to be recovered in full. Therefore, there being no restrictions on retention of data in law, or in the design and public information concerning the administration of NIIMS, the NIIMS database is intrusive. 708. Lastly, the 1st Petitioner argues that the Respondents have failed to indicate why collection of biometric information is necessary at all, beyond distinguishing Kenya from Estonia on the basis of population “heterogeneity” which purportedly justifies “a more robust identity system”, without explaining why biometrics would be better-suited to the Kenyan context, and why specifically 10 fingerprints are needed. 709. The 2nd Petitioner on its part submits that the right to privacy is an inherent right of every person and is not granted by the State, but entrenched as a fundamental right that cannot be lightly diluted, infringed and/or interfered with by the State without proper justification. The 2nd Petitioner relies on the decision of Chelameswar, J. in KS Puttaswamy vs Union of India Writ Petition (Civil) No 494 of 2012, as was cited by the Jamaican Supreme Court in Julian J Robinson vs The Attorney General of Jamaica, Claim No. 2018 HCV01788, which underscored the fundamental status of rights protected under the bill of rights and specifically the right to privacy as one of the core freedoms which is to be defended. 710. The 2nd Petitioner also relies on the case of Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others vs Cabinet Secretary Ministry of Health & 4 Others, [2016] eKLR where Lenaola J (as he then was) defined privacy as a high level of protection given to the individual’s intimate personal sphere of life. 711. The 2nd Petitioner further submits that the full import of biometric data is to require all persons to surrender their unique identifiers or attributes including fingerprints, hand geometry, earlobe geometry, retina and iris patterns, voice waves and Deoxyribonucleic Acid (DNA) in digital form, Global Positioning Systems coordinates, Land Reference Number, and their Plot Number or House Number, if any. In its view, biometric personal information to be obtained under the impugned amendments is not only profoundly intrusive compared to the hitherto physical/manual information, it is also inherently susceptible to the risk of invasion by unintended third parties and may be used for innumerable unintended purposes. 712. Further, that the Supreme Court of India (Dr. Chandrachud J) in the case of KS Puttaswamy vs Union of India (supra) cited by the Supreme Court of Jamaica in Julian J Robinson vs The Attorney General of Jamaica (supra) aptly captures the character of biometric data relative to privacy in that, when adopted in the absence of strong legal frameworks and strict safeguards, biometric technologies pose grave threats to privacy and personal http://www.kenyalaw.org - Page 115/174