Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR will be unaffected. 803. The 2nd and 3rd Respondents contend that the 2nd Petitioner’s claim that the collection of DNA identity data is too intrusive and would violate the privacy of data subjects is baseless. They submit that the collection and processing of DNA is generally permissible in this country. They rely in support on the decision in L.N.W. v. Attorney General & 3 Others [2016] eKLR in which it was held that changes should be made in the law to allow for the names of fathers of children born outside marriage to be entered in the births register and the children’s birth certificates, and that provision should also be made for DNA testing to be undertaken to establish paternity should paternity be denied. It is their submission that the decision in L.N.W v Attorney General & 3 others (supra) was an affirmation by the Court that DNA testing of children is permissible for purposes of the realization of the right of children to know their parents. In their view, it followed that the collection of DNA would be permissible for the attainment of other rights, more so where such rights are crucial to the life and security of children. 804. The 2nd and 3rd Respondents further submit that the collection of DNA is in certain circumstances a crucial form of identification. This is particularly so where there are no other personal identifiers. They cite in this regard cases of fatal flight accidents where all other components of an individual’s biometrics are destroyed, leaving the use of DNA as the only way of identifying the remains. It is also their submission that DNA evidence is also a crucial part of the law of evidence in resolving certain crimes such as rape, murder or manslaughter. 805. The 2nd and 3rd Respondents observe that the data privacy concerns in relation to children raised by the 2nd Petitioner have been grounded on the European Union’s General Data Protection Regulation (GDPR). It is their submission that the GDPR are European Union law and have no binding effect in Kenya. Further, that the principles espoused in the GDPR have not attained the status of universal applicability, having entered into force on 25th May 2018. 806. It is their submission, however, that in the event that this court finds that the GDPR is binding on Kenya, they would invoke Article 86 of GDPR which gives the Member States the discretion to determine the specific conditions for the processing of a national identification number or any other identifier of general application. It is their case that this provision acknowledges the legitimacy of the use of a national identification number and the lawfulness of processing of personal information for purposes of generating the said national identification number. 807. The 2nd and 3rd Respondents further note that recital 46 of GDPR renders lawful the processing of personal data where such processing is necessary to protect an interest essential for the life of the data subject or of another natural person. It is their case that some types of processing may serve both important grounds of public interest and the vital interests of the data subject. Such situations in which processing is necessary for humanitarian purposes include for monitoring epidemics and their spread and humanitarian emergencies such as in situations of natural and man-made disasters. 808. The 2nd and 3rd Respondents therefore submit that the existence of an efficient and organized system of registration and identification of individuals coupled with responsible use of public resources in the process justifies the processing of personal information under NIIMS. 809. The reasons advanced by the Respondents for the registration of children into NIIMS sound reasonable and laudable. They include national security concerns such as the need to combat terrorism, the need to enable the State to fulfil its obligations to children under Article 53 of the Constitution, deal with the inadequacies presented by the birth certificate as an identifier for children in light of the fact that it only has a serial number and does not have children’s biometric data and is therefore not suitable as a means to combat child trafficking and child labour. To this extent we cannot find the impugned amendments’ effect on children unconstitutional. http://www.kenyalaw.org - Page 133/174