Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR devoid of probative value and any averments founded thereupon do not, as a matter of logic, rise to the status of independent expert opinion. 445. The Petitioners’ cross-examined Dr. Omwenga on his affidavit. During cross-examination by Counsel for the 1st Petitioner, Dr. Omwenga testified he was giving evidence as an expert for the government, for which he has done consultancies, but did not have a current contract with. He stated that his last contract with the government was in 2016 and 2017 when he undertook action research for the Government-wide Enterprise Architecture. It was his evidence that he had testified before as an expert in a number of cases by way of affidavit evidence for individuals but not for the government. 446. Mr. Omwenga testified that the 5th Respondent sought his expert advice, but that he had not tendered evidence of the technical specification of NIIMS. It was his testimony that he is well published but had not submitted any paper on NIIMS, and was not involved in building the technical aspects of NIIMS. He admitted that he knew of the existence of the Registration of Persons Act but was not conversant with its legal aspects. He further acknowledged not knowing who the administrator of NIIMs is. 447. Mr. Omwenga was shown Engineer Kibicho’s affidavit sworn on 26th February 2019, and testified that he was in agreement with the fact that NIIMS will be a “single source of truth” on a person’s identity. He maintained that from his experience and knowledge, NIIMS is neither a centralised nor decentralised system, and when asked about the nature of cards with biometric chips, he stated that they are decentralised as they are given to different individuals, and are not in a central database. He also stated that a central database would be multi-modal, and that for deduplication of the data in NIIMS, a set of algorithms will be needed to clean the data. He stated that a software engineer who has the capability and technology can develop algorithms, and gave his experiences developing algorithms in Kenya’s 2017 elections. He further stated that there were many actors involved in developing the electoral system, and that OT Morpho was just one of many. 448. Dr. Omwenga testified that he is familiar with data protection policies, the concept of data minimization, and the concept of thresholds in both deterministic and probabilistic systems. In his view, data minimization is not only about counting data points but also about the quality of data being collected. Further, that more data collected about a person does not risk the subject’s privacy, and collection of more data and the combining of biometric and demographic data is one of the ways of solving the problem of deterministic identity systems. 449. Dr. Omwenga stated that he had enrolled for the Huduma Namba using his identity card in order to be able to get government services. He, however, could not tell if he could have registered for it if he did not have his identity card. He conceded that though he had testified as a government expert, he had not tendered any evidence on the design and architecture of NIIMS. He maintained, however, that the more information NIIMS had the more accurate it would be, and DNA could be included as a means of identification. 450. Mr. Omwenga stated that he was not aware of the system being used to collect DNA currently. He however stated that NIIMS is deterministic and if one does not enrol to the system, one would not get a unique number. He did not, however, know if the system would require all documents such as the identity card and birth certificate in order for one to get a unique number. 451. In cross-examination by Mr. Awele, Counsel for the 2nd Petitioner, Mr. Omwenga stated that he had interacted with data protection several times in relation to data security in storage and in transactions, and he understood why it was important to protect data. He illustrated the importance of data protection and ownership of data by citing the work he had done on data protection and privacy for the Ministry of Health in the government enterprise architecture where it was clear that patients were still the owners of the data. 452. It was Mr. Omwenga’s evidence that the consolidated Petitions raise legitimate concerns on security of the http://www.kenyalaw.org - Page 66/174