Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR matters of policy under the doctrine of separation of powers. 899. The 4th and 7th Respondents similarly submit that the right to privacy is not absolute. Therefore, that in determining the type of information that may be revealed, it would be prudent to establish the purpose/objective of doing so and the value of that information. Further, that the collection of personal information by the State is in accordance with the social contract theory, in that, when ceding their sovereignty to the State, the citizens cede control of certain aspects of their lives and give up the condition of unregulated freedom, including their personal information, in exchange for the security of a civil society governed by a democratically elected government. Reliance was placed on the decision by the European Court of Justice in Michael Schwarz v Stadt Bochum C"291/12, EU:C:2013:670 (17 October 2013) for this position. 900. The 5th Respondent echoes the arguments by the other respondents and submits that the Petitioners failed to state with the required degree of precision the manner in which the alleged threat to the right to privacy has or would be infringed. Further, that they have not demonstrated the way the Respondents intend to obtain any information for unlawful purpose. As such, the petition is hypothetical and speculative. According to the 5th Respondent, it was not disputed that the state bears the right to limit rights bargained by society upon appropriate legal criteria that meets a public interest and purpose. 901. The 5th Respondents argues that that two main standards apply when legislation limits a fundamental right in the Bill of Rights, namely, the rationality test and the reasonableness orproportionality test, in line with the provisions of Article 24 (1) of the Constitution, which provide that such a limitation is valid only if it is “reasonable and justifiable in an open and democratic society”. 902. In justifying rationality of the impugned data, it was the 5th Respondent’s argument that data was collected for a reasonable State objective. The 5th Respondent invited this Court to note that the right to privacy is not a nonderogable right under Article 25 of the Constitution, and cited the decision in Canadian Supreme Court in case ofR vs Oakes 1 SCR 103, which restated the key principles that apply to determine whether a limitation of a right is reasonable and demonstrably justified in a free and democratic society. 903. The 6th Respondent on its part submits that the right to privacy is not absolute, and is subject to limitation as provided for in Article 24 of the Constitution. With particular respect to the impugned amendments, it was the 6th Respondent’s submission that the amendments are intended to enhance development and State security and as such are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Reliance was placed on the decision of the Constitutional Court of South Africa in Samuel Manamela & Another vs The Director General of Justice, CCT 25/99 on the interpretation of Article 24(1). 904. While justifying the fact that it did not downplay Article 24 when enacting the impugned legislation, the 6th Respondent referred to the case of Attorney General & another v Randu Nzai Ruwa & 2 others [2016] eKLR, where it was observed that interests of national security can be invoked to limit rights, if they are reasonable and justifiable. Further reliance on justification for the limitation of the right to privacy was placed on the decision of the Supreme Court of India in Justice K.S. Puttaswamy (Retd.) and others vs Union of India and Others (supra). 905. The Respondents’ positions were supported by the 1st Interested Party, who submits that all the rights which the Petitioners allege to have been infringed by the implementation of NIIMS are not absolute, and can be limited under Article 25 of the Constitution. Further, that in considering the limitation under Article 24 (1) of the Constitution, the Court must bear in mind that there are no superior rights and take into consideration, factors such as the nature and extent of the limitation and the need to ensure that enjoyment of rights and fundamental freedoms by one individual does not prejudice the rights of others. Therefore, that this calls for balancing of rights under the principle of proportionality as was held in the case of University Academic Staff Union (UASU) vs Attorney http://www.kenyalaw.org - Page 149/174