Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR
community and other marginalised groups as compared with other Kenyans. What we found is an amendment to an
existing statute that introduces a system of registration into the population register that requires that one should be
in possession of identification documents issued under other statutes or statutory provisions. It was our view that
should there be challenges with those other statutes or provisions, then such challenges cannot properly be raised in
the present proceedings in which the legislation or provision in contention is entirely different.
1043. We also considered the question whether the Petitioners had laid a factual basis for the allegation that there is
violation of the right to equality and non-discrimination against the Nubians and other marginalised communities.
We were unable to discern violation of the right to equality and non-discrimination from the evidence presented
before us.
(b) On Exclusion
1044. We addressed ourselves to the question whether obtaining the Huduma Namba is mandatory, a condition
precedent to obtaining government services, and therefore likely to result in violation of the right to nondiscrimination. We noted that all the parties were agreed that the use of digital data is the way of the future. The
challenge is to ensure among other things, that no one is excluded from the NIIMS and the attendant services. This
may occur due to lack of identity documents, or lack of or poor biometric data, such as fingerprints. In our view
there may be a segment of the population who run the risk of exclusion.
1045. We therefore found that there is thus a need for a clear regulatory framework that addresses the possibility of
exclusion in NIIMS. Such a framework will need to regulate the manner in which those without access to identity
documents or with poor biometrics will be enrolled in NIIMS. While we recognize the possibility of this exclusion,
however, we did not find that it is in itself a sufficient reason to find NIIMS unconstitutional.
Cost
1046. The final issue to consider is who should bear the costs of the consolidated Petitions. The applicable
principles are that costs follow the event. However, the award of the costs is also at the discretion of the Court. As
this is a matter which clearly raises public interest concerns, it is our view that each party shall bear its own costs.
Disposition
1047. In light of our findings above, we hereby grant, the following orders:
I. A declaration that the collection of DNA and GPS co-ordinates for purposes of identification is intrusive and
unnecessary, and to the extent that it is not authorised and specifically anchored in empowering legislation, it is
unconstitutional and a violation of Article 31 of the Constitution.
II. Consequently, in so far as section 5(1)(g) and 5(1)(ha) of the Registration of Persons Act requires the
collection of GPS coordinates and DNA, the said subsections are in conflict with Article 31 of the Constitution
and are to that extent unconstitutional, null and void.
III. The Respondents are at liberty to proceed with the implementation of the National Integrated Identity
Management System (NIIMS) and to process and utilize the data collected in NIIMS, only on condition that an
appropriate and comprehensive regulatory framework on the implementation of NIIMS that is compliant with
the applicable constitutional requirements identified in this judgment is first enacted.
IV. Each party shall bear its own costs of the Consolidated Petitions
http://www.kenyalaw.org - Page 173/174
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