Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR 266. Ms. Mutung’u further averred that there should be clear provision with respect to data security. She observed that in a country like Kenya where children form a significant part of the population, their data is of great interest to the government but also to data analytics who would want to study the collective traits of Kenyans. She averred that children’s data is therefore highly valuable and requires high protection at all times. 267. Finally, Ms. Mutung’u averred that there was a need to ensure that there was no cross-border transfer of children’s data, and that there should be assurance that children’s data shall not be transferred to jurisdictions without adequate data protection. 268. It was her averment that no attempt had been made in the impugned law to provide for the above safeguards. In her view, the inescapable conclusion was that the said law gives the State unfettered power to gather children’s data without concomitant responsibility to protect children against possible threats of abuse or derogation of their privacy. 269. In cross-examination by Mr. Regeru Ms. Mutung’u confirmed that she had not presented any documents to the court regarding her expertise on children’s digital rights. She had sworn her affidavit in support of paragraph 14(a) of George Kegoro’s affidavit, which she conceded had been responded to by the affidavit of Karanja Kibicho (for the 2nd and 3rd Respondents) sworn on 14th May 2019. She maintained that no system exists in respect to children’s digital data or with respect to the digital data of stateless persons and refugees. 270. Ms. Mutung’u maintained that while Kenya was a signatory to the Convention on the Rights of the Child and the African Charter on the Rights of the Child and had made commitments with respect to the rights of children, looking at the amendments to the Registration of Persons Act, Kenya had made no attempt to protect children’s digital data. She conceded, however, that there is no published information on NIMS and her averments were based on the amendments to the Registration of Persons Act. 271. Ms. Mutung’u also conceded that from the affidavits sworn on behalf of the 5th Respondent by Loyford Muriithi, she had noted mention of encryption, which gives protection to children and adults. She had also noted his averment that as regards children’s identity data, additional or special technical safeguards were incorporated in the architectural design of NIIMS database with a view to providing the requisite safety. She did not know how NIIMS affects the rights of children as she was not familiar with the architecture and functioning of NIIMS. 272. Ms. Mutung’u stated that none of the legislation in force, including the Children Act and the Countertrafficking Act, offer protection to children, and neither did the amendments to the Act align it to the Constitution. In her view, children’s data is not being used to trace children, though it may lead to their tracing. 273. Taken through the averments by the Respondents on the benefits of NIIMS, in particular that digital national master population registers are crucial in enforcing rights nominally enshrined in law by providing greater legal protection, and that NIIMS could help in the elimination of trafficking in children, child labour, as well as help enforce laws against child marriage, she asserted that in her view, there was no benefit to NIIMS given the manner in which it was designed; that digitisation of children’s data was a harmful cultural practice and harmful choices were being made for children; and that once they were digitised, they could not ‘undigitalize’ themselves. As she saw it, the problem with NIIMs was the centralisation of data. 274. With regard to the data capture form for the Huduma Namba, her view was that it did not have provision for consent of parents, just confirmation that one has given their data to government. 275. In cross-examination by Dr. Nyaundi, Ms. Mutung’u maintained that there should be more safeguards and the system should have been discussed before data collection for children started. In her view, if there are safeguards in place, it would be in order to collect children’s data. She asserted that there should be purpose limitation and http://www.kenyalaw.org - Page 40/174