Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR rape cases. He further noted that a person’s DNA can also be transferred to a murder victim or a weapon, even if they never touched it, falsely implicating them in a crime. He illustrated the challenges of mix-up in DNA by citing several examples from media reports in England and the United States about persons who had been charged and in some cases convicted following mix-ups in DNA analysis. 224. Mr. Malombe averred that no other country in the world has legislation which allows the mandatory collection of DNA from whole populations, or inclusion of DNA as part of a national identification system. He averred that mandatory collection of DNA from whole populations violates international principles on human rights. 225. Mr. Malombe averred that to meet international privacy standards enshrined in the International Covenant on Civil and Political Rights and the Constitution, a DNA collection and retention mechanism must be extensively regulated, narrow in scope, and proportionate to meeting a legitimate security goal. Further, that international best practice would require Kenya to incorporate further safeguards into its DNA gathering system, including legal provisions to restrict the circumstances in which DNA may be collected and retained, and restrictions on the purposes for which stored data may be used. In his view, the impugned amendments fail this test. 226. Mr. Malombe cited a report titled ‘Establishing Best Practice for Forensic DNA Databases’ with respect to the key best practices for the protection of privacy in the collection of DNA. These include regulations on fully informed consent, quality assurance of laboratories, restriction of purposes, rules for expungement of data and destruction of samples. He averred that these safeguards should be enshrined in law before establishing a DNA database. Like the other deponents for the 2nd Petitioner, Mr. Malombe’s prayer was that the court should protect the rights of citizens and allow its Petition. 227. The third deponent who swore an affidavit in support of the 2nd Petitioner’s case was Ms. Alice Munyua, who described herself as the Policy Advisor, Africa, of the Mozilla Corporation, the maker of the Firefox browser used by hundreds of millions of people around the world. She averred that from her work with Mozilla, she had gained substantial expertise and competence on issues of privacy, security, data protection and digital ID, and had engaged with governments around the world on the said issues. 228. Ms. Munyua conceded that there is no doubt that legal identification is generally valuable for society, and that such legal identification schemes are enablers for the effective delivery of services and engagement between government and its citizens. She cited in this regard the UN Sustainable Development Goals (SDGs) which call for "providing legal identity for all, including birth registration" by 2030. She averred that without these commonly recognized forms of official identification, individuals are at risk of exclusion. 229. Ms. Munyua contended that at Mozilla, it had been recognised that Kenya appeared to have various challenges with the current legal identification system. She also observed that the Office of the Ombudsman in the Commission on Administrative Justice (CAJ) in Kenya had, in 2015, declared a crisis in the issuance of legal documentation in Kenya. That it had also provided evidence of widespread discrimination in access to documentation of identity, including access to proof of citizenship. In her view, transitioning to a digital identification system without first addressing the existing problem of widespread discrimination will not solve these problems. It will, rather, introduce several additional grave concerns including violations of privacy, security risks, increased discrimination and exclusion. Ms. Munyua relied in support on the CAJ investigation report on the crisis of acquiring identification documents in Kenya. 230. According to Ms. Munyua, transitioning to a digital biometric identification model is not required in order to realize the benefits of legal identification. She averred that to assume that "leapfrogging" to digital identification is inherently superior ignores the risks that digital, particularly biometric identifications, bring when deployed on a national scale. http://www.kenyalaw.org - Page 34/174