Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR General & others, [2018] eKLR. 906. The 1st Interested Party also cites the case of Robert Alai vs The Hon Attorney General & Another, [2017] eKLR where the court observed that constitutionally guaranteed rights should not be limited except where the limitation is reasonable and justifiable, and the objective of that limitation is intended to serve the society. It also cites the case of R.v.Oakes, [1986] 1 S.C.R. 103 , where the court stated that the onus of proving that a limitation on any Charter right is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. 907. It is the 1st Interested Party’s view that the implementation of NIIMS is reasonable and justifiable, and meets the constitutional muster under Article 24 of the Constitution, considering that NIIMS shall ease tracing of families of separated children with special needs and by this the government shall be able to reunite these children with their families. Further, that NIIMS would curb cases of illicit adoption practices, child trafficking and permanent separation of children from their biological families. In addition, that NIIMS will facilitate the matching of resources to children socio economic needs and enable the government deliver its key constitutional mandate as envisaged in Article 53 of the Constitution of Kenya. 908. The 8th and 9th Interested Parties submissions focused on justification presented by the terrorists incidents in Kenya, and they contend that Article 24(1) of the Constitution permits limitation of the rights and fundamental freedoms in the Bill of Rights that are reasonable and justifiable, and that the greater public interest and security concerns far outweigh individual rights. They further argue that terrorist attacks have led to the curtailment of privacy through activities that are now routine, including registering identification data at nearly every public building including places of worship, and undergoing searches at all public gatherings. 909. Accordingly, they argue that the aggregation and verification of data already available to State agencies through a system such as Huduma Namba can thwart future attacks and deter terrorists and criminals from operating freely in the country. The 8th and 9th Interested Parties point out that the limitations to the rights in Article 31 were tested in Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10 others, [2015] eKLR where the Court found the limitations imposed on the right to privacy by the National Intelligence Service Act to be reasonable and justifiable on account of the circumstances of our nation, the adequacy of safeguards built into the law and the availability of remedies for any breach. 910. We note that the issue of whether the impugned amendments violate and limit the constitutional right to privacy has already been dealt with extensively in this judgment, and this Court has made two findings in this respect. Firstly, that other than the collection of DNA and GPS coordinates, the other biometric data that is required to be collected by the amendments is necessary for purposes of identification, and there is thus no violation of the right to informational privacy under section 31(c) of the Constitution. 911. Secondly, this Court has found that although a legal framework for protection of personal data now exists in Kenya, there are inadequacies in the said legal framework in terms of operationalization, and also in terms of the implementation and operationalization of NIIMS, to guarantee the security of the data that will be collected in NIIMS. To this extent, there is a risk that the data collected in NIIMS may be accessed by unauthorized persons or used for improper or illegal purposes, which is a threat to the right to privacy which may occur in the implementation of NIIMS. To this extent, there is the possibility of a limitation on the right to privacy 912. We commence our analysis by noting that the right to privacy is not one of the rights that cannot be limited under Article 25(c) of the Constitution. Therefore, a limitation is permissible so long as it meets the criteria set out in Article 24 (1), which provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account the nature of the right or fundamental http://www.kenyalaw.org - Page 150/174