Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR Government can store such records and efficiently mine them for information years into the future…. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices” 771. Therefore, while Mr. Ochieng (the 5th Respondent’s witness), explained that the GPS co-ordinates in the impugned amendments are required only for purposes of digital identification of an individual’s geographical location, their potential uses are much more, and in the context of identification of persons possess a risk to privacy. There is need for more detailed and strict regulation on the use of GPS co-ordinates, to avoid abuse and misuse of the provisions in the impugned amendments. 772. The upshot of our findings in the foregoing is that biometric data and GPS coordinates required by the impugned amendments are personal, sensitive and intrusive data that requires protection. This Court prohibited the analysis and use of the personal data collected during NIIMS for this reason, and even though there was no evidence brought by the Petitioners of any violations of rights to privacy in this respect, this Court finds that the impugned amendments impose an obligations on the relevant Respondents to put in place measures to protect the personal data. 773. To this extent, the answer to the question as to whether there is threat of a violation to the right to privacy in the provision for collection of biometric data and GPS coordinates is dependent on the adequacy of the protection measures of the said data, and will await an examination of the existing legal framework on the protection of data. 774. It is also notable that in Article 31 (c) of the Constitution, a violation of the right to informational privacy occurs when personal information is unnecessarily required or revealed. Therefore, the outstanding question before us is whether the requirement of, and collection of biometric data was necessary or not. The Petitioners in this regard urged that the said biometric data was not necessary for reasons that its purpose was not stated, and was purpose free. Closely related to this argument was the averment by the Petitioners that there is unnecessary data that was collected under NIIMS that was not necessary for identification, such as information on agricultural activities and landholding. 775. The Petitioners also challenge the utility of the biometric data in identification. The Petitioners also challenge the utility of the biometric data in identification, and their expert witnesses testified to the challenges some sections of the population may face in enrolling or authenticating certain biometric features such as worn fingerprints, the possibilities of reaching false conclusions while relying on biometric data as it relies on probabilities, and there will thus be no deduplication of data. 776. The justification put forward by the Respondents for the collection of biometric data was that the right to privacy is not an absolute right, that biometric data is necessary as the most deterministic method of identification, and that reliable data is necessary for the State to provide services and security to its citizenry. The Respondents also urged that the biometric data being collected is necessary for the purpose of creating a digitized national population register as a single source of personal information on all Kenyan citizens and residents. Their expert witnesses gave detailed evidence on the NIIMS design as a multi-modal system that will ensure that the biometric data is deterministic. 777. We have considered and appreciate the detailed information and evidence given by the parties on the nature of biometric data, and its use in identification. We need to clarify two aspects of the relevance of this evidence at the outset. Firstly, it is evident from the various definitions of biometric data that its main utility is with regard to identification of a natural person. To this extent, biometric data is necessary for identification purposes. We in this respect adopt the findings of the Supreme Court of India in Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others (supra) on the necessity of the different types of biometric data in identification as follows: http://www.kenyalaw.org - Page 127/174