Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR 810. The Respondents have not, however, addressed the core issues that we believe the Petitioners’ objection to the collection of children’s data are hinged upon: that the Act does not apply to children, the collection and security of their biometric data, and the criminalisation of failure by a parent or guardian to register a child with NIIMS. While the Respondents argue that one of the reasons for NIIMS is that the government had discovered that information relating to children was not being captured comprehensively at birth and NIIMS was intended to assist the government achieve 100% registration of births through the use of technology, they have elected to anchor the system under which they intend to collect children’s data on legislation that expressly excludes children. Enacted in 1949, the Act’s long title indicates that it is an “Act of Parliament to make provision for the registration of persons and for the issue of identity cards, and for purposes connected therewith.” 811. Section 2 of the Registration of Persons Act provides as follows: This Act shall apply to all persons who are citizens of Kenya and who have attained the age of eighteen years or over or where no proof age exists, are of the apparent age of eighteen years or over. 812. The Petitioners are thus correct in their contention that the Act does not apply to children and persons who are not citizens of Kenya. Section 9A which was introduced by the impugned amendments, however establishes the NIIMS system, and provides that one of its functions is to create a national population register as a single source of personal information of all Kenyan citizens and registered foreigners resident in Kenya. It does not make any exception for children. The question is what is the effect, with respect to collection of children’s data, of anchoring NIIMS in legislation that specifically excludes children" The Petitioners argue that this renders the Act vague and defective, and its application to children unreasonable, unjustifiable and unnecessary. 813. It appears to us that the manner in which NIIMS was brought into being does not reflect much thought on the part of the Respondents. While from the Respondents’ evidence it is clear that NIIMS is intended for all citizens and foreigners’ resident in Kenya, it was however provided for in legislation providing for registration and issuance of identification documents for adults who are citizens of Kenya. We note that in response to the contention that there are inconsistencies between NIIMS and other registration institutions and systems such as IPRS, the 2nd and 3rd Respondents argue that where appropriate, NIIMS would be deemed to override any earlier statutory provision that is inconsistent with it. Reliance is placed for this contention on the authority of Kenya Pharmaceutical Distributors Association v Kenya Veterinary Board & 3 others [2017]eKLR where the Court held that the provisions of the Veterinary Surgeons and Veterinary Para-Professionals Act, being of a latter statute, override those of the Pharmacy and Poisons Act where appropriate. The Court was guided in its decision by what it referred to as the settled principle that “a latter provision or statute overrides the older one or is deemed to have repealed the earlier one.” 814. The question before us is whether this reasoning is applicable in respect of a latter amendment to a statute that conflicts with an earlier provision with respect to the application of the Act. To find a solution to this conflict, we can only seek guidance from the principle of statutory construction and interpretation. The rules of statutory interpretation of relevance in this respect are those on implied amendment and implied repeal. These rules provide that where a later enactment does not expressly amend (whether textually or indirectly) an earlier enactment which it has power to override, but the provisions of the later enactment are inconsistent with those of the earlier, the later by implication amends the earlier so far as is necessary to remove the inconsistency between them. If the later Act cannot stand with an earlier, Parliament is taken to intend an amendment of the earlier. 815. This is a logical necessity, since two inconsistent texts cannot both be valid without contravening the principles of contradiction, that is, contradictory statements cannot both at the same time be true and the court must do its best to reconcile them. If the entirety of an earlier Act is inconsistent, the effect amounts to a repeal of it. The test to applied to determine whether there has been a repeal by implication by subsequent legislation is whether the provisions of a later Act are so inconsistent with, or repugnant to, the provisions of an earlier Act that the two http://www.kenyalaw.org - Page 134/174