Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR applicable, a chief and elders representing all communities in that locality, as well as government security agencies. They submit that the composition of these committees ensures that all communities are included in the respective Committees. 964. Like the other Respondents, the 4th and 7th Respondents maintain that equality before the law and freedom from discrimination as enshrined in Article 27 of the Constitution does not mean that every law must have universal application for all, regardless of their circumstances. It is their submission that the varying needs of different classes of persons require special treatment, and that differentiation is inherent in the concept of equality, which requires parity of treatment under parity of conditions. They cite in support the decision in EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) Petition Nos. 150 & 234 of 2016 (Consolidated). 965. They also rely on the decision of the South African Constitutional Court in Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12 in which the court set out the test for determining whether a claim based on unfair discrimination should succeed. Reliance is also placed on the decision in John Harun Mwau v Independent Electoral and Boundaries Commission & Another (supra) for the proposition that different treatment or inequality does not per se amount to discrimination and a violation of the Constitution. In their view, the differential treatment accorded to members of certain communities in the country serves a legitimate purpose and does not amount to unfair discrimination. 966. In his submissions on the issue of non-discrimination, the 5th Respondent submits that he understands the term ‘discrimination’ to imply any distinction, exclusion, restriction or preference which is based on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. He relies on Black’s Law Dictionarywhich defines discrimination as: “The effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex, nationality, religion or handicap or differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.” 967. The 5th Respondent submits that the Petitioners’ contention that the impugned amendments will result in violation of Article 27 has no basis, noting that the Petitioners have not discharged the evidentiary burden of proof. He relies on the case ofNyarangi & 3 Others vs. Attorney General (Supra) to submit that the law prohibits, not discrimination, but unfair discrimination. 968. With regard to the process of registration in NIIMS, the 5th Respondent argues that the only requirement for a person to be registered and issued with a unique identifying number is a national identity card. It is his case that the Respondents had provided a Data Capture Form which all Kenyans, including members of the 1st Petitioner, are required to complete. In his view, the inability of Nubians, Somalis and Arabs to provide the supporting documents as a result of extra vetting could not amount to discrimination. 969. The 5th Respondent argues that the introduction of the NIIMS database is to make the registration process much easier. His submission is that the new system will be more efficient than the current system which requires supporting documents before any identity documents are issued to the applicant. It is his case that the introduction of the NIIMS database is in no way proof of Kenyan nationality, and registration thereto does not translate to being conferred with Kenyan nationality. The 5th Respondent reiterates the purposes of NIIMs as being to create, manage, maintain and operate a national population register as a single source of personal information of all Kenyan citizens and foreigners resident in Kenya, assign a unique national identification number on every person and to harmonize, incorporate and collate into the register, information from other databases in government agencies relating to the http://www.kenyalaw.org - Page 159/174