Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR rights of others. Its view is that this calls for balancing of rights under the principle of proportionality because rights have equal value. Further, that the court should maintain the equality of rights as was held in the case of University Academic Staff Union (UASU) v Attorney General & others [2018] eKLR. 975. The 1st Interested Party further cites the case of Attorney General & another v Randu Nzai Ruwa & 2 others [2016] eKLR in which the Court relied on the decision by the Constitutional Court of South Africa in Samuel Manamela & Another v The Director General of Justice CCT 25/99 for the proposition that the court must engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list. Further, that as a general rule, the more serious the impact of the measure on the right, the more persuasive or compelling the justification must be. 976. It is its argument further that Article 24 of the Constitution and various judicial precedents emphasize the importance of considering the object, purpose and effect of legislation; that they require that the importance of the purpose of the limitation should be considered, as well as the relationship between the limitation and its purpose; and further, that whether there are less restrictive means of achieving the purpose should also be considered. The 1st Interested Party cites in this regard the case of Robert Alai v The Hon Attorney General & another [2017] eKLR in which the court observed that constitutionally guaranteed rights should not be limited except where the limitation is reasonable, justifiable and the objective of that limitation is intended to serve the society. Reliance was also placed on the Canadian case of R. v. Oakes [1986] 1 S.C.R. 103 in which the court stated that the onus of proving that a limitation on any Charter right is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. 977. The 1st Interested Party invites the court to take into account the fact that the government regularly rescues up to 200 children at a go, including abandoned and disabled children, who are committed to the 1st Interested Party for care and protection. The 1st Interested Party argues that it is then expected to reunite such children with their families. It is its contention that in light of such obligations placed upon it, the implementation of NIIMS is reasonable and justifiable and meets constitutional muster under Article 24 of the Constitution. Its view in this regard is on the basis that NIIMS shall ease tracing of families of separated children with special needs and the government shall be able to reunite these children with their families. 978. The 1st Interested Party further argues that NIIMS would curb cases of illicit adoption practices, child trafficking and permanent separation of children from their biological families; that NIIMS seeks to capture and store data in a centralized digital database for effective and efficient tracing of a child’s family and to confirm parentage; and that the NIIMS platform will also facilitate the matching of resources to children’s socio-economic needs and enable the government deliver its key constitutional mandate in accordance with its obligations under Article 53 of the Constitution. 979. Its position, therefore, is that NIIMS is reasonable, proportionate and justifiable in an open and democratic society when the the plight of Kenyan children, whose rights are protected under Article 53 of the Constitution, is considered. 980. The 8th and 9th Interested Parties also discount the argument that NIIMS will lead to violation of the Petitioners’ rights under Article 27 of the Constitutioin. They submit, through their Learned Counsel, Mr. Omuganda, who highlighted their submissions dated 14th October, 2019 that the Constitution contemplates limitation of the rights and fundamental freedoms, and the greater public interest and security concerns far outweigh individual rights. It is their position that Article 24(1) of the Constitution permits limitation of rights if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. Their view is that the rights to privacy, equality and nondiscrimination fall within the purview of rights that can be limited for security reasons. http://www.kenyalaw.org - Page 161/174