Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR clarity on why children’s data was being collected, as well as limitation on who can access that data once it has been collected, as well as being very clear on what happens to the children as regards their data when they attain the age of majority. She disputed the suggestion that biometric registration will reduce cases of child labour and child trafficking. 276. In response to questions from Mr. Bitta, Ms. Mutung’u maintained that the law relating to data collection contained in the Act is deficient in certain respects, and to the extent of the deficiency, the law is unconstitutional. She confirmed that under Article 1 of the Constitution, the people of Kenya have given power to the legislature to legislate, but the court had power to question a law or policy on the basis that it is not efficacious, and can ask the legislature to correct the legislation. She conceded that the technical aspects of a legislation would be found in subsidiary legislation, not the main Act, and that the information being sought under NIIMS is necessary to the government for, among other thing, knowing where children are born, their residence and parentage. 277. In re-examination, Ms. Mutung’u stated that while it was necessary to know where children are born, among other things, it was not necessary to have such information in digital form. She expressed the view that the amendments to the Act had abrogated human rights and, in respect to children, there was no legal provision for collection of children's data or issuing identity cards to children. Ms. Mutung’u referred to section 2 of the Act to confirm her contention that the Act applies only to Kenyans who are above 18 years. 278. While agreeing with the views expressed in the affidavit of George Kegoro in support of the Petition and the need for special protections for children who are a vulnerable group, she took a critical view of NIIMS on the basis, first, that children's data was collected without a legal basis and secondly, there was no consideration of the question whether it was necessity to collect children's data and then digitise it or in other words change children into data. In her view, it was necessary, in the circumstances, to ask the questions set out in Article 24 of the Constitution, whether it was necessary to collect children's data, and whether there were less abrogating ways of collecting this data and safeguarding it and protecting the privacy and dignity of children. 279. With respect to the architecture and design of NIIMS, Ms. Mutung’u stated that the 2nd Petitioner had requested for information about the technical capability of NIIMS and how it was being developed from the Ministry of Interior in December 2018 but they had not received a response. 280. Ms. Mutung’u made reference to the averments by George Kegoro with respect to the collection of DNA, the immutability of DNA, and that once it is collected, it is permanently stored. She testified that should the database containing DNA be breached, it would threaten the privacy of every person. It was her contention further that the State will have unhindered access to people's DNA and be able to profile and share the individual’s religious, political, cultural, health, criminal and other predispositions without their consent. With regard to children, the concern was that malevolent actors may want to profile children and manipulate their lives and behaviour. 281. To the question whether the digitisation of data would stop child trafficking, Ms. Mutung’u reiterated her response in cross-examination that it would not, noting that there were cases, such as in India, where children were registered by people other than their parents, and in her view, registration under NIIMS would not stop trafficking. 282. On the provisions of Article 24 of the Constitution, Ms. Mutung’u’s evidence was that there was no legitimate basis for collecting children’s identity data as section 2 of Act does not envisage collection of children's data or issuance of identity to children. In any event, in her view, there are less restrictive measures, or measures that would promote their rights more. There was nothing in the law in her view that would safeguard children, a vulnerable part of the population, as the law was silent on and does not address the issue of children in any way. 283. Ms. Mutung’u expressed the apprehension that everyone was being reduced to data and that only a person with a digital personality can receive services. Further, that the idea that one can only receive services if one has a http://www.kenyalaw.org - Page 41/174