Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR citizenship by birth. The 1st Petitioner argues that this ‘quasi-denationalization' re-labeling of Kenyans as foreigners across all government systems linked to NIIMS represents a massive threat to Nubians on account of their ethnicity, race or tribe, without any safeguards put in place to prevent it, and no hint of an effective remedy. 930. The 1st Petitioner contends, thirdly, that after “successful” enrolment in NIIMS, Nubians and other communities who are heavily scrutinized and policed face a heightened risk of profiling and tracking within the system just as they do in respect of the existing national registration system. They term these failings with respect to the impugned amendments in general and NIIMS in particular as contrary to Article 27 of the Constitution. 931. The 2nd Petitioner supports the contentions by the 1st Petitioner that the impugned amendments and the NIIMS process will result in a violation of the right to equality and non-discrimination guaranteed under Article 27. It further agrees with the 1st Petitioner that the process will lead to discrimination against those communities and groups such as the 1st Petitioner, stateless persons, refugees and persons who have perennially been denied the opportunity to register for purposes of identification. It further contends that the impugned amendments have not addressed the underlying legal and institutional issues that face stateless and other undocumented persons, and that the amendments will therefore merely entrench and exacerbate these issues in the digital sphere. It is also the 2nd Petitioner’s contention that the fact that the impugned law does not expressly apply to stateless persons, refugees and aliens will lead to their continued marginalization. 932. The main contention by the 2nd Petitioner, however, with respect to violation of the constitutional right to equality and non-discrimination is that the impugned law effectively makes it mandatory to register under NIIMS and to obtain the unique identification number. It submits that under section 9A(2)(d), NIIMS shall, among other things, support the printing and distribution for collection of all national identification cards, refugee cards, foreigner certificates, birth and death certificates, driving licences, work permits, passport and foreign travel documentation, and student identification cards issued under the Births and Deaths Registration Act, Basic Education Act, Registration of Persons Act, the Refugee Act, the Traffic Act and the Kenya Citizenship and Immigration Act, and all other forms of government issued identification documentation as may be specified in a Gazette Notice by the Cabinet Secretary. The 2nd Petitioner submits that from this provision, public services connected to these identification documents will only be offered to those who surrender their personal biometric information and are issued with the unique identification number known as the Huduma Namba. 933. It is the 2nd Petitioner’s contention that the overall effect of the impugned amendments will be to offend Article 27 of the Constitution which guarantees the right of equality before the law and explicitly prohibits discrimination on any ground. It submits that denying any person constitutionally guaranteed rights to public services based only on lack of biometric identification is unreasonable and unjustifiable in a free and democratic society. 934. The 2nd Petitioner argues that no cogent or persuasive evidence has been provided to demonstrate that the said services can only be efficiently provided using biometric data of the nature sought under the Act. To buttress its argument, it cites the decision in R vs Big M. Drug Mart Ltd [1985] 1 S.C.R. 295 in which the court stated that freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience. 935. It is also its contention that the impugned amendments have not addressed the underlying legal and institutional issues that face stateless and other undocumented persons and will therefore merely entrench and exacerbate them in the digital sphere. 936. The 3rd Petitioner did not address itself to this issue, while the 3rd and 4th Interested Parties, though they indicated their support for the Petitions, did not file any submissions. The 6th Interested Party also supported the http://www.kenyalaw.org - Page 154/174