Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR were the Aadhaar (Enrolment and Update) Regulations, 2016, The Aadhaar (Authentication) Regulations, 2016, The Aadhaar (Data Security) Regulations, 2016 and the Aadhaar (Sharing of Information) Regulations, 2016. 885. In this respect, while the Respondents explained the measures they have put in place to ensure the safety of the data collected by NIIMS and the security of the system, including the encryption of the data and restricted access, it was not disputed by the Respondents that there is no specific regulatory framework that governs the operations and security of NIIMS. The Respondents also did not provide any cogent reason for this obvious gap. To this extent we find that the legal framework on the operations of NIIMS is inadequate, and poses a risk to the security of data that will be collected in NIIMS. 886. Lastly, on the arguments made on the paucity of information on the security and safeguards of personal data provided by NIIMS, we note that the Petitioners did not bring any evidence of having complied with the Access to Information Act, for us to find a violation on this account. The procedures for accessing information are set out in sections 8 to 11 of the Access to Information Act, which includes that an application for access to information should be made by an applicant who shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested. 887. Therefore, the duty to disclose any information on NIIMS on the part of the Respondents will only arise where there is a request made and there is a refusal by the Respondents to disclose. No such evidence of such request and refusal was presented by the Petitioners, and it is thus our finding that their arguments on this front did not have a legal basis. Whether the Impugned Amendments are an Unnecessary, Unreasonable and Unjustifiable Limitation. 888. The 1st Petitioner submits that if the Court finds that a limitation to a right is provided by law such as the amendments to the Registration of Persons Act, then it should proceed to the proportionality analysis contained in Article 24(1). It cites the cases of Kenya National Commission on Human Rights & Another vs Attorney General & 3 Others, [2017] eKLR and Jacqueline Okuta & Anor vs Hon. Attorney General & 2 Others, Petition No. 397 of 2016, for the position that the determination of the issue whether a law that limits rights is justified is by arrived at by asking whether the law is proportionate. Further, that proportionality is defined as ‘the set of rules determining the necessary and sufficient conditions for a limitation on a constitutionally protected right by a law to be constitutionally protected’, the elements of which are delineated in Article 24(1). 889. The 1st Petitioner cites the Jamaican Supreme Court decision in the Julian J Robinson Case which opted for “the strict application” of the proportionality test as “the best way to preserve fundamental rights and freedoms”. Further, that in Geoffrey Andare v Attorney General & 2 others [2016] eKLR the court extensively relied on the Oakes Test in interpreting the Constitution in a manner that advances the rule of law and human rights. 890. The 2nd Petitioner on its part cites the case of Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] eKLR for the test against which limitation of any right recognized under the Bill of Rights may be permitted under Article 24 of the Constitution. It submits that under Article 24(3) of our Constitution, the burden of proving the reasonableness and proportionality of any limitation of a fundamental right is expressly reposed in the state and has to be discharged on a high standard based on cogent and persuasive evidence. The case of Robert Alai v The Hon Attorney General & Another [2017] e KLR was cited in this regard. 891. According to the 2nd Petitioner, when held against the above standards, it is clear that the Respondents have merely strived to justify the purpose of NIIMS amendments without cogent and/or persuasive evidence to demonstrate that the stated purpose is sufficiently important to warrant overriding the fundamental right to privacy and connected rights; or that the measures adopted have been carefully designed to achieve the stated purpose of http://www.kenyalaw.org - Page 147/174