Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR to demand additional evidence from persons from marginalized areas, and entails an onerous process of establishing their Kenyan nationality in order to receive a national identity card. 16. It was its argument further, that the discriminatory practices against the Kenyan Nubian community has been recognized at the regional level by the African Commission on Human and People’s Rights in the Nubian Community in Kenya vs Republic of Kenya (Decision of February, 2015), and by the African Committee of Experts on the Rights and Welfare of the Child in Children of Nubian Descent in Kenya vs Kenya (Decision of March, 2011). Furthermore, that both tribunals found that Kenya’s discriminatory registration and identity documentation practices infringe on the rights of members of this minority. 17. The gravamen of the 1st Petitioner’s case therefore, is that NIIMS will aggravate the discriminatory practices against the Nubian community, as it will be linked to the provision of essential government services. According to the 1st Petitioner, their access to identity documents is already unequal, and the mass biometric registration requiring submission of state-issued documentation, threatens to further exclude and disenfranchise persons from marginalized areas. 18. The 1st Petitioner’s third challenge to NIIMS related to the process of procurement, design and establishment of NIIMS. It contended that IDEMIA (previously or concurrently operating as Morpho/OT-Morpho/Safran Identity and Security) which has been tasked with the process of data collection under NIIMS, has been implicated regarding lack of proper delivery of services both in Kenya and other countries such as Ghana. It was its contention that there is no public record of the procurement process for the design of NIIMS, and that the tender could have been awarded before the impugned law was enacted. 19. The fourth challenge raised by the 1st Petitioner is on the process of enactment of the Statute Law (Miscellaneous Amendments) Act No. 18 of 2018. It was averred that the Bill was never presented to, debated or passed by the Senate, yet according to the 1st Petitioner, this is the constitutional way through which members of the public participate in the passing and amendment of laws. 20. The 1st Petitioner further contended in this regard that counties have a direct interest in the registration of persons, as part of their functions relate to county planning and development including the use of statistics. It contended therefore, that failure to submit the Statute Law (Miscellaneous Amendments) Bill to the Senate for consideration was a violation of Article 96 of the Constitution. 21. It was also the 1st Petitioner’s case that the use of a miscellaneous amendment procedure for the establishment of NIIMS denied the concerned communities adequate opportunity to know about the issues and participate in its establishment as required under the Constitution. Further, that the Miscellaneous Amendment Bill was an “omnibus Bill” which obfuscated and combined many issues, making it extremely difficult for citizens to engage effectively with the process. According to the 1st Petitioner, it is only proper to use the procedure of Statute Law Miscellaneous Amendments in cases of minor, non-controversial corrections of legislation. 22. The 1st Petitioner further challenged the process of enactment of the impugned amendments on the basis that the right to public participation was not observed. It contended that the concerned communities were not accorded a reasonable opportunity to know about the issues or have an adequate say in the amendments. It further argued that since the enactments, the government has not sensitized its citizens on the far-reaching effects of data collection. 23. The fifth and last concern raised by the 1st Petitioner was that there is no law in force to guarantee the privacy provisions in the Constitution, given the invasive process proposed to be implemented through NIIMS. It was its case that it is the right of every person to have their right to privacy, which includes homes, property, possessions, information and communication, protected. The 1st Petitioner raised particular concern with the requirement for Global Positioning Systems Coordinates (GPS) and Deoxyribonucleic Acid (DNA), among other biometrics. It http://www.kenyalaw.org - Page 5/174