Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR adversely in a comparably serious manner. (ii) If the differentiation amounts to ‘discrimination,’ does it amount to ‘unfair discrimination’" If it has been found to have been on a specified ground, then the unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation… (c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause. 987. With respect to the burden of proof on a claim that an action or law is discriminatory, it has been held that the burden lies on a person alleging unfair discrimination to establish his claim. In Mohammed Abduba Dida v Debate Media Limited & another [2017] eKLR, the court (Mativo J) stated as follows: “I must add that if the discrimination is based on any of the listed grounds in Article 27 (4) of the Constitution, it is presumed to be unfair. It must be noted, however, that once an allegation of unfair discrimination based on any of the listed grounds in article 27 (4) of the constitution is made and established, the burden lies on the Respondent to prove that such discrimination did not take place or that it is justified. On the other hand, where discrimination is alleged on an arbitrary ground, the burden is on the complainant to prove that the conduct complained of is not rational, that it amounts to discrimination and that the discrimination is unfair.” 988. It must also be noted, as observed by Mativo J in Mohammed Abduba Dida v Debate Media Limited & another (supra) that: “It is not every differentiation that amounts to discrimination. Consequently, it is always necessary to identify the criteria that separate legitimate differentiation from constitutionally impermissible differentiation. Put differently, differentiation is permissible if it does not constitute unfair discrimination.” 989. Turning to the facts of the present matter, we pose the questions: does the impugned amendment differentiate between members of the Nubian community and other marginalised groups and other Kenyans" If it does, does it have a rational basis and is it therefore constitutionally permissible" 990. Section 9A(1) of the impugned Act established the “National Integrated Identity Management System” whose function is “to create, manage, maintain and operate a national population register as a single source of personal information of all Kenyan citizens and registered foreigners resident in Kenya”. The impugned law thus applies to all persons resident in Kenya, whether nationals or citizens of other states. To that extent, the law as enacted does not differentiate between nationals or foreigners, and thus everyone, including members of the Nubian community and other groups such as members of the Shona community who are citizens of or resident in Kenya, are entitled to register. Indeed, the 1st Petitioner and its witnesses acknowledge that they are entitled to register for the Huduma Namba. 991. Their challenge to the system is that they encounter challenges and hardships in acquiring identity documents under the existing system, particularly the vetting process mandated under section 8(1A) of the Act. They assert that the Act grants registration officers broad authority to demand additional evidence from persons from marginalized areas, and they are faced with an onerous process of establishing their Kenyan nationality in order to obtain identity cards. The gist of their grievance, as we understand it, is that the vetting process that they are subjected to under section 8(1A) of the Act is discriminatory and therefore a violation of their rights under Article http://www.kenyalaw.org - Page 164/174