Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR delivery of government services; permitted children to opt out of the system entirely until they turn 18; mandated an effective redress mechanism when data is misused; minimised the kind of data the government is permitted to collect; and reduced the storage period for authentication logs from 5 years to 6 months. 93. In Mr. Shafi’s view, the introduction of NIIMS in a legal and regulatory context in which ethnic and religious discrimination prevents minorities like the Nubians from accessing identity documents exacerbates their discrimination without any reasonable justification. He asserted that the effect of rolling out the system will defeat the stated purpose of NIIMS, which is to provide universal access to government benefits, services and the digital economy. 94. Mr. Shafi explained the context in which he wrote a letter dated 8th April, 2017 in his further affidavit sworn on 12th April, 2019. He stated that the letter was a response to a mobile identity card registration campaign carried out by the 2nd and 3rd Respondents. His explanation was that the letter illustrated that the Nubian community has faced discrimination, hence the need for special registration initiatives. Further, that the appreciation by the 1st Petitioner in the said letter of the work of the National Registration Bureau did not mean that the discrimination against the Nubian community has ceased, but merely signified the 1st Petitioner’s goodwill and cooperation. 95. Mr. Shafi deposed that the plight of the Nubian community with respect to registration of persons was not unknown to the 2nd Respondent and its respective agencies. This was because it was an issue in the case of The Nubian Community in Kenya vs The Republic of Kenya at the African Court on Human and Peoples’ Rights. His testimony was that the requirement for a national identity card number in the NIIMS enrolment form was meant to target the members of the Nubian community who do not have such details because of the numerous vetting processes conducted by the 2nd Respondent. 96. Mr. Shafi stated that the NIIMS enrolment form clearly indicated that a Huduma Namba was a mandatory requirement for receipt of all services, and this would expand the scope of discrimination already suffered by the Nubians. He deposed that he had personally witnessed a significant number of members of the Nubian community being turned away for lack of various requirements like the identification card during the NIIMS pilot project phase launched on 15th February 2019. It was his averment that the registration for NIIMS was mandatory, and hence violated the spirit of Article 31 of the Constitution. 97. Referring to the disclaimer in the NIIMS enrolment form which stated that the data may be shared with third parties, Mr. Shafi reiterated that there is no comprehensive data protection framework in Kenya. His opinion was that the enactment of the data protection laws should have preceded the NIIMS registration process. 98. When cross-examined by Mr. Nyamodi for the 4th and 7th Respondents, Mr. Shafi stated that at the time he swore his supporting affidavit on 14th February 2019, the NIIMS enrolment exercise had not commenced, but could not remember whether the enrolment had started by the time he swore his further affidavit on 12th April, 2019. He did not respond to the question whether he had, in his affidavit, indicated the provisions of the Constitution that had been violated. 99. Mr. Shafi stated that the issue of vetting procedures prior to the issuance of identity documents preceded NIIMS. His testimony was that his problem with the vetting committees was that they were becoming more security-based. He conceded that the vetting procedure is provided for by section 8(1A) of the Registration of Persons Act, and that an elder of the Nubian community is a member of the vetting committee. His view, however, was that the issues of discrimination in the vetting process have not been addressed, though he disclosed that he had not personally been vetted for purposes of obtaining a passport, nor had he ever been a member of a vetting committee. 100. Mr. Shafi further conceded that although he had averred that there were no clear provisions indicating how the http://www.kenyalaw.org - Page 16/174