Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR this court. It relies on the decision in Patrick Ouma Onyango & 12 Others v the Attorney General & 2 Others, Misc Appl No. 677 of 2005 in which the court took the view that “[i[n order for a claim to be justiciable… it must “present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted.” It is its submission that in the present case, the entire ground alleging discrimination is premised on mere apprehension not directly attributable to the enactments in issue. Rather, it has its basis on alleged past administrative action that has never been subject to judicial inquiry and determination. 943. In their submissions, the 2nd and 3rd Respondents also oppose the allegation that the impugned amendments and the NIIMS process will result in discrimination against the 1st Petitioner and other marginalised communities. They note that the 1st Petitioner challenges the impugned amendments on the basis that sections 3, 5 and 9 of the Act would perpetuate discrimination against members of the Nubian Community who are allegedly being discriminated against under the current registration systems. The 2nd and 3rd Respondents deny that this is the case. They rely on the definition of discrimination in the case of Jacqueline Okeyo Manani & 5 Others v. Attorney General & Another [2018] eKLR. 944. The 2nd and 3rd Respondents note that from the above decision, the elements of discrimination are unequal treatment, unfavourable bias and bias based on the constitutional definition of discrimination. 945. They submit that contrary to the allegations by the 1st Petitioner, NIIMS does not meet the above elements. This is because, first, the Act as amended does not make any distinction in the registration of persons onto NIIMS, and the Act is clear that all residents are free to enlist onto NIIMS. They further submit that the Kenya Citizenship and Immigration Act, 2012 already provides for the criteria and process of registration of foreigners in Kenya, including the stateless, as does the Refugees Act, 2006, with respect to refugees residing in the country. Their submission is that NIIMS does not replace these existing processes, systems and documents. 946. According to the 2nd and 3rd Respondents, the 1st Petitioner’s contentions are based on a misapprehension of the role to be played by NIIMS. Their case is that the Act does not confer citizenship. On the contrary, it is based on pre-existing laws on citizenship and registration which are all perfectly constitutional. They illustrate their position by citing the Kenya Citizenship and Immigration Act, 2012, the Refugees Act, 2006, and the Children Act to submit that since these Acts are presumed to be constitutional, and since NIIMS is based on them, it cannot therefore be deemed to be discriminatory or unconstitutional. 947. The 2nd and 3rd Respondents maintain that the documents under the respective Acts would continue to be issued under the existing framework, which means that passports would be issued under the provisions of the Kenya Citizenship and Immigration Act; births and deaths certificates under the Births and Deaths Registration Act; while refugee and alien cards would be issued on the basis of the Refugee Act and the Kenya Citizenship and Immigration Act respectively. Their submission is that none of these documents would be issued under the Statute Law (Miscellaneous Amendments) Act No 18 of 2018. Further, that NIIMS does not introduce any new requirements outside of the existing legal framework, nor does it contain any provision that fosters discrimination. 948. With regard to the 1st Petitioner’s contention that NIIMS would perpetuate discrimination against members of the Nubian community due to the requirement for vetting, the 2nd and 3rd Respondents submit that this allegation has no basis. This is because it is not sections 3, 5 and 9 of the Act that introduced vetting as a process for the issuance of identification documents to the Nubians or any other border community. They ask the court to take judicial notice of the fact that vetting committees are a legally sanctioned part of the process of issuing identification documents pursuant to section 23 of the Security Laws (Miscellaneous Amendments) Act, 2014 which amended the Act by adding section 8(1A) on vetting. 949. They contend that despite the fact that vetting only applies to border communities, this does not make it discriminatory within the meaning of Article 27 of the Constitution. They rely in support of this submission on the http://www.kenyalaw.org - Page 156/174