Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR security, as their application can be broadened to facilitate discrimination, profiling and mass surveillance. 713. The 2nd Petitioner also urges that privacy ensures autonomy and self-determination in the face of increasing State power, and that data collection and analysis can be a demoralizing process and can create a false image of an individual. Thus, broad government access to an individual’s information can significantly upset the delicate balance of power in a democracy between citizen and State. The 2nd Petitioner’s contends that no evidence has been provided by the Respondents to support the assertion that biometric data is the most robust authentication and identification method available, or that there were no alternative/less intrusive means of achieving the stated purpose of NIIMS. 714. The 3rd Petitioner reiterates that the impugned amendments will enable the Respondents to collect personal data which qualifies as sensitive personal information which would require consent, clear objectives for collection, measures to protect the information from any breaches and remedies for breach. However, that the amendments do not provide for any of the above thereby exposing individuals to violation of their privacy guaranteed under Article 31 of the Constitution. 715. The 5th Interested Party on its part submits that all the information required under NIIMS was unnecessary as this is information that exists in other State databases that is, the information collected under NIIMS is identical to the information kept by the Principal Registrar under Section 5 of the Act. Be that as it may, that all the information sought in the Huduma Namba Data Capture Form amounts to information relating to one’s family and one’s private affairs. 716. The 5th Interested Party further submits that Section 3 of the Registration of Persons Act was amended to include the definition of "biometric" as unique identifiers or attributes including fingerprints, hand geometry, earlobe geometry, retina and iris patterns, voice waves and Deoxyribonucleic Acid in digital form. To that end, it cites the case of Julian J Robinson vs The Attorney General of Jamaica [2019] JMFC Full 04 (hereinafter the Julian Robinson Case), where the Supreme Court of Jamaica noted that biometric data, by its very nature, is intrinsically linked to characteristics that make us ‘humans’ and its broad scope brings together a variety of personal elements and the collection, analysis and storage of such innate data is dehumanising as it reduces the individual to but a number. Further, that when an individual is forced to surrender a biometric identifier as part of State action, they are giving up information about themselves and they disclose truly unique information about their identity among others. 717. The 5th Interested Party also cites the case of Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] eKLR where while considering the problematic aspects of government databases, Lenaola J (as he then was) and Muriithi J held that even where the goal being pursued by the State is legitimate, the manner in which data is collected can be an infringement on the right to privacy. 718. It is the 5th Interested Party’s view that data was collected without informed consent from the data subjects and this being a State-backed exercise, it cannot be said that those who gave their information understood what they were doing nor can it be said that they gave informed consent to the utilisation of their information. Further, that the Data Capture Form, and indeed a lot of government propaganda which this court must take judicial notice of, came with a warning “Huduma Namba Registration is mandatory as per Section 9A of the Registration of Persons Act (Cap 107). It will enable the Government to provide you with services”, which amounts to deliberately misleading the public as no reading of section 9A would produce the interpretation stated in the Data Capture Form nor does it make it compulsory for people to register for the said Huduma Namba or even tie the registration of this number to the provision of services. Accordingly, if indeed more than 31 million people registered under NIIMS, they did so under duress and fear of the unknown drove them to register, not their autonomy. http://www.kenyalaw.org - Page 116/174