Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR among others. It was his averment that no effort had been made, with regard to children, to defer to their special interests and vulnerabilities as minors. He contrasted this with the European Union’s GPDR which recognizes children’s vulnerability and the additional support measures necessary to keep them safe in the digital age and accordingly makes specific provisions intended to offer them additional protection in the evolving data age. 195. The second failing identified in the impugned law by the 2nd Petitioner was what was perceived as the opaqueness that surrounds the actual software that has been deployed for NIIMS. Mr. Kegoro averred that the nature, capabilities, ownership details and other critical features of the system were known only to the State, with no information with regard thereto known by the public. He discounted the 5th Respondent’s assertions that it designed and developed NIIMS with the combined effort of an inter-ministerial taskforce specifically formed for this purpose as a bare statement. In his view, there is no way of verifying that NIIMS meets minimum integrity, transparency and accountability standards as would guarantee privacy of personal information stored therein from unintended third parties or from abuse from within. 196. According to Mr. Kegoro, measured against the ideal legislative framework for a secure, transparent and verifiable system, the NIIMS system fell short, as it was impossible for example, to answer questions such as where the personal data gathered is being stored, for how long the data will be held, whether there are automatic notification mechanisms whenever data stored and processed in the system is accessed, and to whom the State can disclose the data. In contrast with the opacity in NIIMS, Mr. Kegoro cited the GDPR which he averred dedicates considerable provisions to guidelines for the implementation of appropriate technical and organizational measures to ensure a level of security appropriate to the risk. In his view, judging from the State’s admissions, the system appeared to have been developed well before the enactment of the impugned laws, which gave credence to the fear that the system was arbitrarily developed and its security and integrity safeguards, if any, fall far short of international standards for similar systems. 197. The third weakness identified by the 2nd Petitioner related to the collection of DNA under the NIIMS system. Mr. Kegoro averred that in light of the capabilities of DNA highlighted in the affidavit of Mr. Davies Malombe, its collection without specific, restrictive and mandatory safeguards on how it may be used threatens every aspect of the citizen’s privacy. He reiterated the apprehension expressed on behalf of the 2nd Petitioner by Ms. Munyua and Mr. Malombe that through the unhindered access to people’s DNA, the State will be able to profile and share individuals’ religious, political, cultural, health, criminal and other pre-dispositions without their consent. 198. In his response to the grounds of opposition filed by the 6th Respondent, Mr. Kegoro denied that there had been inordinate delay in filing the Petitions. He noted that the impugned Act was assented to on 31st December 2018, and commenced operations on 18th January 2019, while the Petition was filed barely 30 days from the said date. In any event, according to Mr. Kegoro, jurisprudence in this country since the advent of the 2010 Constitution had established that the doctrine of laches did not apply in cases for the enforcement of the Bill for Rights. 199. With respect to the 6th Respondent’s claim that there had been public participation in the enactment of the impugned amendments, Mr. Kegoro averred that such claims consisted of bare allegations and fell far short of the standard of proof of public participation, the burden in respect of which fell on the Respondent. The said burden has not been discharged, and there was no evidence that Parliament took any measures to facilitate meaningful participation or to involve the public in the law-making process beyond the newspaper publication that merely listed the names of the Acts to be amended in the omnibus Bill. 200. Mr. Kegoro made similar averments with respect to the grounds of opposition filed by the 1st Respondent. He observed that aside from consisting of bare denials, there was no attempt by the 1st Respondent to respond to the substantive issues raised in the Petition. He asserted that in any event, as established by judicial precedent, Parliament and the State bear the burden of proving, to the requisite standard, that public participation in legislative processes had been facilitated. http://www.kenyalaw.org - Page 30/174