Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR Petitions and filed submissions, but it did not address itself to the issue of alleged violation of the right to equality and non-discrimination. 937. In its submissions in support of the Consolidated Petitions, the 5th Interested Party agrees with the 1st and 2nd Petitioners that the impugned amendments would lead to violation of Article 27, for various reasons. It argues that the collection of biometric identifiers during the registration process implies an intent by the State to subsequently use biometric identifiers for authentication of identity. In its view, this Act, coupled with the messaging from the State that Huduma Namba will be needed in order to access government services as set out in the Data Capture Form, implies several things which the 5th Interested Party deems detrimental to fundamental rights. It submits, first, that the mass registration exercise is not the only time biometric identifiers will be collected by the State; that biometrics will be required at the point of service to determine the authenticity of the person being served; and that this may happen every time a person requires services from any government agency. 938. Its second contention is that all government agencies will have a copy of the biometric identifiers which they will use to authenticate identity of every person served, and every agency with access to this information can tell the behavioural patterns of a data subject from the digital footprint left at every authentication. It is its submission that this creates a fertile basis for covert surveillance, and even if such information was only to be held by one agency, there would still be potential for surveillance, which is frowned upon under the Constitution. It cites in this regard the decision in Kenya Human Rights Commission v Communication Authority of Kenya & 4 others [2018] eKLR. In the 5th Interested Party’s view, such surveillance could lead to profiling, which in turn could lead to discrimination, and the effect of such a system is therefore unconstitutional. 939. The contention that the impugned amendments will result in violation of Article 27 is strenuously contested by the Respondents. The 1st Respondent submits, first, that the 2nd Petitioner had, in its written submissions, admitted that the text of the amendments in issue in and of itself was not discriminatory. In the 1st Respondent’s view, to the extent that the Petition is premised entirely on the constitutionality or otherwise of the enactments in issue, the admission was dispositive of the issue. This was because what was at issue was not the administrative practices of the Respondents but constitutionality or otherwise of the amendments. We observe at the outset that our perusal of the submissions by the 2nd Petitioner have not disclosed this alleged admission on its part. 940. It is also the 1st Respondent’s contention that there is no material placed in evidence before the court, save for the bare and general allegation of discrimination by the 1st Petitioner, to support its allegation of discrimination. Such material, in the 1st Respondent’s view, would have consisted of cogent evidence from specific members of the Nubian community on the alleged discrimination. In the absence of such evidence, the claim of discrimination remained unproven. To the 1st Respondent, the pilot projects on NIIMS, which were conducted in several locations within the Republic including Kibera and Eastleigh North in Nairobi County, as well as those undertaken in Marsabit and Wajir counties where no issues of discrimination arose, are pointers that there is no discrimination in the implementation of NIIMS. 941. With regard to the reliance by the 1st Petitioner on the African Commission of Human and People’s Rights decision as a basis for the claim that there was discrimination against members of the Nubian community, the position of the 1st Respondent is that the said Commission is not a judicial body and its recommendations are neither conclusive nor binding. Further, that in any event, the said Commission has in reported cases before the African Court on Human and Peoples’ Rights submitted that it does not have confidence in Kenya’s judicial processes in giving timely and effective redress. It is his contention further that the Commission, which is actively engaged in legal proceedings against the Republic of Kenya, cannot be said to be impartial towards the Republic of Kenya. The 1st Respondent further takes the position that the report by the African Commission has no nexus in any way with the legislative amendments in issue. 942. The 1st Respondent takes the position that the 1st Petitioner has no justiciable controversy in its Petition before http://www.kenyalaw.org - Page 155/174