Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR 201. In his response to the replying affidavit sworn by Dr. Karanja Kibicho on 26th February 2019, Mr. Kegoro averred that, as pleaded in the Petition, the 2nd Petitioner was not opposed to the establishment of NIIMS. Its opposition was only to the extent that NIIMS had failed to provide sufficient safeguards for fundamental rights and to prevent abuse. Mr. Kegoro averred that the justification for a modern registration system is not disputed. What the 2nd Petitioner was concerned with was that such a system should be alive to the equally advanced and sophisticated threats and capabilities for abuse that, unless checked by force of law, expose the people to serious threats of violation of inalienable fundamental rights and freedoms. 202. In his view, the NIIMS did not have clear, verifiable, accountable and secure checks and counterchecks to safeguard individual rights of privacy and security of the person as the Data Protection Bill 2018 that prescribe these safeguards had not yet been passed into law. He contended that whereas digitisation of certain public service systems may improve service delivery, extra precautionary measures must be taken to guard against increased threats of ‘single point of entry type’ breaches by internal and external parties to the detriment of the public, and without data protection laws, these threats intensify. 203. Mr. Kegoro reiterated that whereas the purpose of NIIMS may have been well envisioned, its implementation under the prevailing circumstances is a serious threat to the right to privacy, a fact which the affidavits of Alice Munyua from the Mozilla Group and Dr. Fisher from Privacy International had attested to. 204. Mr. Kegoro noted that the Strengths, Weaknesses, Opportunities and Threats (SWOT) Analysis on Existing Identification and Registration Systems in Kenya analysis report filed in court by the Respondents recommended the adoption of an effective law that would, among other things, ensure the security of any data collection system in light of the increasing threats of breaches and theft of vital citizen records in the digital age. 205. Mr. Kegoro averred that the fact that, as deposed by Dr. Kibicho, personal information collected under the impugned Act will be in the exclusive custody of the government presents opportunities for abuse. It was his deposition that comparative best practices and standards for data protection recommend, among other things, the creation of an independent data protection authority to oversee the State as the processor and controller of protected information and thereby enhance accountability and protection from abuse. It was his view that NIIMS as established is essentially a self-policing data controller, processor and protection authority. 206. Mr. Kegoro reiterated the argument by the 2nd Petitioner that the amendments had not met the constitutional threshold for public participation. He based this contention on three grounds. First, that the call for submission of memoranda in respect of the Statute Law Miscellaneous Amendment Bill No. 12/2018 merely lists the Registration of Persons Act as one of the laws to be affected by the amendments. No further information was published as regards the content or impact of the proposed amendments in order to meaningfully facilitate informed public involvement in the law-making process. His second reason is that in the departmental committee reports, there is no record of any discussions of the substance of the amendments to the Registration of Persons Act, and in his view, in light of the inadequacies of public participation, this was not a coincidence. Finally, he contended that there is no record that the departmental committees received or considered any memorandum from the public in respect of the contentious amendments. 207. It was his averment therefore that there was no evidence that the Respondents complied with Articles 10 and 118(1)(b) of the Constitution. In his view, the purported public awareness efforts undertaken by the Respondents through newspaper articles and interviews were subjective one-sided efforts merely aimed at promoting the adoption of the system rather than facilitating meaningful or informed public involvement in the process. 208. With respect to the information required under NIIMS, Mr. Kegoro averred that the collection of individuals’ DNA by force of law and for no specific purpose is intrusive and excessive relative to the purpose for which the NIIMS has been established. His contentions in this regard were in consonance with the averments of Mr. Davis http://www.kenyalaw.org - Page 31/174