Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR policy, legal and institutional frameworks compliant with the Constitution are put in place. f) Any other orders and/or reliefs as the court may deem fit. g) Costs of the petition. The 2nd Petitioner’s Evidence 153. In his supporting and further affidavits Mr. George Kegoro reiterated the contents in the Petition with respect to the enactment and effect of the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018. He averred that unless the orders sought in the 2nd Petitioner’s Petition are granted, the substantive objects of the said amendments shall seriously dilute fundamental rights and freedoms protected under the Bill of Rights, or subject them to serious threats of violation by the State and or unintended third parties. He listed five reasons why the amendments to the Act and the establishment of NIIMS violated or pose a threat of violation of fundamental rights and freedoms. 154. The first reason pertains to the threat of violation of the right to privacy and associated rights. Mr. Kegoro averred that any interference with the Bill of Rights amounts to a collateral attack on the dignity and potential of the people. It was his averment that in the digital age, personal information is vital data. Consequently, integrating all personal information of the population of Kenya in one system whose security and integrity has not been guaranteed by the force of law will expose citizens to unimaginable risks should the system be compromised or breached in any way. The result of such breach would, in his view, be to disrupt or curtail, in material respects, the enjoyment of almost all fundamental rights and freedoms under the Bill of Rights. 155. According to Mr. Kegoro, the impugned amendments of the Act impose excessive and unnecessarily extensive mandatory requirements for citizens’ personal information without providing for concomitant safeguards to prevent abuse or intrusions by the state or unintended third parties. The effect of the amendments would be to breach Article 31(c) of the Constitution that guarantees every person the right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed. 156. Mr. Kegoro averred that in view of the stated functions set out in sections 3 and 9A (2)(c) and (d), the impugned amendments are bound to impact every aspect of people’s lives including access to the right to education and health as well as related services, the protection of property, freedom of movement, right to receive public services, right to presumption of innocence, freedom from self-incrimination, right to privacy and security of the person, human dignity. In his view, since the impugned amendments do not specify how sensitive personal information will be collected, verified, stored, secured, accessed and utilized, there is real threat that the system is susceptible to breach, which would occasion irreparable harm and damage to the people and the country at large. He attributed this danger to the fact that Kenya does not have legislation or policy on data protection. 157. Mr. Kegoro further averred that in his view, the impugned amendments are almost certainly ultra vires the standards of limitation of fundamental rights set out in Article 24(1) of the Constitution. He averred that as a matter of fact, the amendments ostensibly repeal Article 31(c) of the Constitution. 158. The second reason advanced by Mr. Kegoro is that the amendments have elementary law defects, ambiguity and susceptibility. He cited in this regard sections 3 and 9A (2) of the impugned Act which he termed particularly intrusive, ambiguous and susceptible to abuse. He then proceeded to point out the shortcomings of each of the subsections of section 9A (2) of the impugned Act. 159. With regard to section 9A (2)(a) which creates NIIMS, he averred that the provision requires, in mandatory and unqualified terms, that all Kenyan citizens, including children, submit their personal information to the State. He contended that the section does not define what constitutes ‘personal information’, or the applicable standards http://www.kenyalaw.org - Page 24/174