Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR “251. Face Photographs for the purpose of identification are not covered by a reasonable expectation of privacy. Barring unpublished intimate photographs and photographs pertaining to confidential situations there will be no zone of privacy with respect to normal facial photographs meant for identification. Face-photographs are given by people for driving license, passport, voter id, school admissions, examination admit cards, employment cards, enrolment in professions and even for entry in courts. In our daily lives we recognize each other by face which stands exposed to all, all the time. The face photograph by itself reveals no information. 252 There is no reasonable expectation of privacy with respect to fingerprint and iris scan as they are not dealing with the intimate or private sphere of the individual but are used solely for authentication. Iris scan is nothing but a photograph of the eye, taken in the same manner as a face photograph. Fingerprints and iris scans are not capable of revealing any personal information about the individual except for serving the purpose of identification. Fingerprints are largely used in biometric attendance, laptops and mobiles. Even when a privacy right exists on a fingerprint, it will be weak. Finger print and iris scan have been considered to be the most accurate and non-invasive mode of identifying an individual. They are taken for passports, visa and registration by the State and also used in mobile phones, laptops, lockers etc for private use. Biometrics are being used for unique identification in e passports by 120 countries.” 778. Therefore, the only relevant consideration as regards the necessity of biometric data is its utility with respect to the authentication or verification of a person. The Article 29 Data Protection Working Party in its Working Document on Biometrics identified the necessary qualities required of biometric data for purposes of authentication and verification are that the data should have attributes that are: (a) universal, in the sense that the biometric element exists in all persons; (b) unique, in that the biometric element must be distinctive to each person, and (c) permanent, in that the biometric element remains permanent over time for each person, and a data subject is in principle not able to change these characteristics. 779. It is notable in this respect that the biometric attributes required by the impugned amendments meet these criteria, as most of them are universal and unique to the data subjects. The only reservation we have is as regards the utility of DNA for identification purposes. This is for the reason that unlike other biometric characteristics, the technique used in DNA identification, which is a DNA comparison process, does not allow for the veri"cation or identi"cation to be done “in real time”, the comparison is also complex, requires expertise, and takes time. 780. The European Court of Human Rights in S and Marper v United Kingdom 30562/04 [2008] ECHR 1581 addressed the issue of the utility of holding DNA in a database, and found that the continued holding of DNA samples of individuals who are arrested but later acquitted or have the charges against them dropped, is a violation of the right to privacy under the European Convention on Human Rights. Some of the reasons given by the Court as to why the retention of cellular samples and DNA profiles was a breach of the right to privacy were as follows: “73.Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned. That only a limited part of this information is actually extracted or used by the authorities through DNA profiling and that no immediate detriment is caused in a particular case does not change this conclusion (see Amann, cited above, § 69). 74.As regards DNA profiles themselves, the Court notes that they contain a more limited amount of personal information extracted from cellular samples in a coded form. The Government submitted that a DNA profile is nothing more than a sequence of numbers or a barcode containing information of a purely objective and irrefutable character and that the identification of a subject only occurs in case of a match with another profile in the database. They also submitted that, being in coded form, computer technology is required to render the http://www.kenyalaw.org - Page 128/174