Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR concerned Government agencies in the Inter-Ministerial Committee implementing NIIMS arising from the need for the data, and for the Government to be cost effective but also for efficiency reasons. We find this explanation to be reasonable, and given that such cooperation with other agencies in registration of persons is also allowed by the law, we do not find the data so collected to be unnecessary. 790. In conclusion, it seems to us that the Petitioners’ concerns in this respect conflated the stated purpose of NIIMS as provided in the law, with the veracity of its benefits as alleged by the Respondents. As held in R vs Big M Drug Mart Ltd (supra) both the purpose and effect of a legislation are relevant in determining the constitutionality of a legislation. In this regard the Respondents have demonstrated that the purpose of the impugned legislation is to set up an identification system, and to the extent that it is necessary, then the same is constitutional. On the other hand, the Petitioners did not demonstrate in what manner the benefits are unconstitutional, and instead seemed to demand evidence of their existence, and the ranking of their priority and importance. It is our view and finding that the stated benefits of NIIMS given by the Respondents in their evidence are in the public interest and not unconstitutional. Whether there is a Violation of Children’s’ Rights to Privacy 791. An additional limb of the challenge to the NIIMS process with respect to its alleged violation of the rights to privacy relates to the rights of privacy of children. The Petitioners and the Interested Parties who support them argue that while the impugned amendments and the resultant process of digitisation of data applies to everyone, including children, section 2 of the Act does not include children. It is their argument that by providing that it applies to persons over the age of 18 years, it specifically excludes the application of its provisions to children. 792. In its submissions, the 2nd Petitioner notes that one of the reasons advanced for NIIMS is that it was discovered that information relating to children was not being captured comprehensively at birth. The government was accordingly keen to achieve 100% registration of births, and one of the ways it intended to do so was by employing suitable technology. The 2nd Petitioner argues, however, that section 2 of the Act applies the Act exclusively to persons who are citizens of Kenya and who have attained the age of eighteen years or over or, where no proof of age exists, are of the apparent age of eighteen years or over. It submits that though the impugned amendments purport to apply the Act to all persons, the limitation under section 2 is a patent defect that renders the Act vague and, accordingly, defective. It was also its submission that for the above reasons, its application to children is unreasonable, unjustifiable and unnecessary. 793. According to the 2nd Petitioner, section 9A(2) of the Act establishes a very generic, wide and ambiguous scope of the functions of NIIMS. It further notes that there are essentially no restrictions with regard to what the personal data collected, including children’s personal data, may be used for. It is its submission that given children’s vulnerable status, clear distinctions should have been prescribed for collection, use, processing and storage of children’s data relative to adults. 794. The 2nd Petitioner notes that under the impugned amendments, parents have a mandatory duty to surrender their children’s information failing which they face the threat of criminal sanctions which is contrary to international laws, best practices and standards. It was its view that there was no problem or challenge so grave that required mandatory registration of children backed by criminal sanctions. The 2nd Petitioner relies on the decision in the Julian Robinson Case for the proposition that difficulty in establishing identification is not a synonym for an inability to establish identity. 795. The 5th Interested Party, echoes the submissions of the 2nd Petitioner with regard to the application of section 2 of the Act. It submits that the section only applies to citizens of Kenya who have attained the age of 18 years, not to children or foreign nationals. It notes that in the training manual produced as evidence by Dr. (Eng) Karanja Kibicho the registration assistants were given express instructions to collect personal information on children. It is http://www.kenyalaw.org - Page 131/174