Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR Malombe, the Deputy Executive Director of the 2nd Petitioner, with regard to the collection of DNA, and the risks that such collection, storage and use of DNA posed to data subjects. 209. Mr. Davis Malombe in turn made detailed averments with respect to the ethics and legality of collection of DNA in his affidavit sworn on 12th April 2019. Mr. Malombe noted that as DNA pertains to entire populations, Kenya would be required to be compliant with international conventions and standards with respect to collection of DNA. 210. He expressed the opinion that the inclusion of DNA in the expanded scope of personal information that may be biometrically collected for purposes of registration of persons under the impugned law is excessive and unjustifiable. He averred that collecting DNA under the prevailing circumstances poses serious threats to protection of human dignity and privacy of the people of Kenya and sets out various reasons for taking this position. 211. Mr. Malombe relied on the International Declaration on Human Genetic Data, unanimously adopted by UNESCO in 2003, according to which DNA is essentially information about heritable characteristics of individuals obtained by analysis of nucleic acids or by other scientific analysis. DNA is extracted from a sample of a person’s cells contained in, among other things, blood, hair roots and saliva which is analyzed in a laboratory to obtain the required genetic information, which can be stored as a string of numbers on a computer database. 212. He averred that the impugned law sanctions collection of DNA without the consent of the subject, and collection of DNA without consent is regarded as a violation of a person’s bodily integrity. He contended that while a number of countries do sometimes collect DNA without consent from a limited number of citizens, this occurs only in circumstances prescribed by law, where such violations are regarded as necessary and proportionate to the need to investigate criminal or terrorist offences. However, in order to do this, extensive legal safeguards and tight restrictions on whose DNA may be collected in this way must be adopted. 213. Mr. Malombe further averred that DNA contains various parts which can be used for different purposes. He noted, by way of illustration, that the International Declaration on Human Genetic Data recognizes various DNA capabilities as including that they can be predictive of genetic predispositions concerning individuals; they may have a significant impact on the family, including offspring, extending over generations, and in some instances on the whole group to which the person concerned belongs; they may contain information the significance of which is not necessarily known at the time of the collection of the biological samples;they may have cultural significance for persons or groups, they may be used to track and identify individuals and their family members; and if further analyzed, DNA can reveal even more detailed information such as a person’s health or other human capabilities that should otherwise remain private. 214. He contended that genetic information is therefore regarded as sensitive personal information and the declaration obligates member States to regulate the collection, processing, use and storage of DNA for specific limited and strictly regulated purposes such as diagnosis and health care, medical and scientific research. 215. Mr. Malombe took the position that the impugned amendments fly in the face of the above precautions by sanctioning unrestricted and mandatory collection and storage of DNA in digital form. He contended that the impugned Act makes no restrictions on what genetic information may be collected, what it may be used for, who it may be shared with and the basic standards that must be observed in the collection, processing, use, storage or disclosure of such information. 216. While conceding that DNA may be collected for forensic or criminal investigations, it was his view that even in these circumstances which have been established in a number of countries, whole genomes are not normally used and a legal restriction is normally put in place to restrict genetic information to specific parts of the genome referred to as ‘non-coding’ DNA. He contended that a forensic DNA profile is obtained and stored, based on only http://www.kenyalaw.org - Page 32/174