Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR parts of the DNA, which do not reveal personal characteristics. 217. According to Mr. Malombe, this limits the interference with an individual’s right to privacy by preventing personal information regarding health and other physical characteristics from being stored. Such forensic DNA profiles act as a ‘genetic fingerprint’ or biometric, enabling individuals to be identified through matching their stored DNA profile with a DNA profile from a crime scene, for example. However, unlike other biometrics, a forensic DNA profile can also be used to identify relatives (including paternity and non-paternity) and make inferences regarding the ethnicity or ancestry of the individual. He averred that forensic DNA profiles are therefore also regarded as sensitive personal information. 218. According to the 2nd Petitioner, indiscriminate collection of genetic information under the prevailing legal circumstances in Kenya make such information susceptible to extraneous use, including negative profiling of individuals for ulterior motives. Mr. Malombe observed that a person’s DNA is left wherever they go, for example on a coffee cup, and this means a DNA database allows the government, police, or anyone who gains access to it to track individuals and their families, even if they have not committed crimes. This can be done by matching a DNA profile, found for example on a coffee cup at a political meeting, with a stored DNA profile in the computer database, which then provides details about the individual’s name and address, among other things. 219. Mr. Malombe averred that if the whole population is on a DNA database, such database is open to abuse by governments or anyone who can infiltrate the system: for example by criminals wanting to track down victims, including high profile figures such as politicians or members of the security services, whose safety may be dependent on not revealing their identities. 220. A further reason advanced by the 2nd Petitioner against the collection and storage of DNA is that unlike fingerprints, DNA profiles can be used to identify an individual’s relatives. This was so because an individual inherits half their DNA from their father and half from their mother, and a DNA database of a whole population can be used to find a person’s parents, children, siblings and more distant relatives by comparing their DNA through a process of searching a DNA database known as “familial searching”. According to Mr. Malombe, if a person’s father or child is not really biologically related to them, “non-paternity” can be discovered easily by comparing the DNA profiles of the father and their supposed children. 221. Mr. Malombe contended that the discovery of non-paternity can have very serious impacts on families, and it was his averment that in most countries, relatedness and non-paternity is regarded as a private matter that may be investigated within the family but should not be exposed by others, including by the police or government. He argued therefore that building a universal DNA database risks the break-up of families by making it easy to discover non-paternity. He alleged, by way of illustration, that databases could be misused by a corrupt official or anyone who can infiltrate the system and gain access to the data, and if criminals gain access to information about non-paternity, they might blackmail an individual or their family by threatening to reveal this information. 222. Mr. Malombe averred further that an individuals’ genetic information may also be analysed to identify more distant relatives or infer genetic ancestry or lineages. This, in his view, raises additional concerns that a DNA database may be used to facilitate identification of, and potential discrimination against, persons of different ancestries. 223. According to Mr. Malombe, there are currently no comprehensive international safeguards for DNA databases, which are also susceptible to errors and false matches. This risk increases when the database is expanded because more samples are being analyzed and more computer searches are being conducted. Mr. Malombe cited the most frequent source of errors in these circumstances as being the mix-ups or contamination of samples, either at the laboratory or before the samples get there. He further observed that errors are also more likely to occur where DNA from a crime scene contains a mixture of cells from more than one person, which he noted is often the case in http://www.kenyalaw.org - Page 33/174