Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR introduction of an identity system entails the mass collection, aggregation and retention of people’s personal data which has implications on the right to privacy. It was his averment therefore, that adequate safeguards should be put in place to ensure that such data is relevant and not excessive in relation to the purposes for which it is stored, and that it is preserved in a form which permits identification of the data subjects for no longer than is required. Further, that the law must also afford adequate guarantees that retained personal data is efficiently protected from misuse and abuse. 879. Mr. Anand, similarly raised similar concerns in his evidence about the purpose free architecture of NIIMS, its lack of data minimization, its exclusionary design, and the risks of mass surveillance, breaches and fraud during decryption of data. 880. Our view as regards the centralized storage of the biometric data of data subjects is that there will be risks of attacks or unauthorized access which exist with any storage of other personal data, but the most important risks are related to the misuse of the biometric data because this is data which are uniquely linked with individuals, which cannot be changed and are universal, and the effects of any abuse of misuse of the data are irreversible. The misuse can result in discrimination, profiling, surveillance of the data subjects and identity theft. In addition, as a result of the central storage of biometric data, in most cases the data subject has no information or control over the use of his or her biometric data. 881. The report of the United Nations High Commissioner for Human Rights on The Right to Privacy in the Digital Age indicated as follows in this regard: “The creation of mass databases of biometric data raises significant human rights concerns. Such data is particularly sensitive, as it is by definition inseparably linked to a particular person and that person’s life, and has the potential to be gravely abused. For example, identity theft on the basis of biometrics is extremely difficult to remedy and may seriously affect an individual’s rights. Moreover, biometric data may be used for different purposes from those for which it was collected, including the unlawful tracking and monitoring of individuals. Given those risks, particular attention should be paid to questions of necessity and proportionality in the collection of biometric data. Against that background, it is worrisome that some States are embarking on vast biometric data-based projects without having adequate legal and procedural safeguards in place.” 882. We also note that these risks will also arise where the storage of biometric data is distributed between a central and federated or decentralized databases, which can be sometimes even amplified. In particular, there will be increased risks of unauthorized access and use and tracking of personal data during the process of linking the information, and the possibilities for re-use for unintended purposes of data held in decentralized databases. For these reasons, biometric data should be protected at every phase by the system design, from the collection, processing, use and retention of the data, and in all types of biometric identification databases, whether centralized or decentralized. 883. It is our conclusion therefore that all biometric systems, whether centralised or decentralised, and whether using closed or open source technology, require a strong security policy and detailed procedures on its protection and security which comply with international standards. We were referred to some of the applicable principles and standards that should govern the design and architecture of NIIMS in relation to its data, its application, technology, architecture and security, by both the Petitioners and Respondents’ experts, and which are highlighted in the report by Mr. Brian Omwenga on Principles Of Government Enterprise Architecture. 884. For our purposes, what is relevant is that the said principles and standards should be provided and actualized in regulations that will govern the operation of NIIMS. In addition, the biometric data and personal data in NIIMS shall only be processed if there is an appropriate legal framework in which sufficient safeguards are built in to protect fundamental rights. An example of similar Regulations in India that were framed under the Aadhaar Act, http://www.kenyalaw.org - Page 146/174