Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR registration of persons. 970. In further support of his argument that there would be no discrimination as a result of the impugned amendments and the introduction of NIIMS, the 5th Respondent relies on the decision in John Kabui Mwai & 3 Others vs. Kenya National Examination Council & 2 Others [2011] eKLR on the form of discrimination that is prohibited by law. He submits that a claim of discrimination should be analysed from both a subjective and an objective perspective, and that in determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, the court should consider not only the impugned legislation which has created a distinction that is alleged to violate the right to equality but also to the larger social, political and legal context. The 5th Respondent also relies on the decision in Jacques Charl Hoffmann vs. South African Airways, CCT 17 of 2000 which was cited in the High Court decision in Centre for Rights Education and Awareness (CREAW) & 7 Others vs. Attorney General [2011] eKLR] in support of this argument. It is his position that the 1st Petitioner has failed to establish the grounds upon which the members of the Nubian community have been discriminated or even differentiated against as compared to other Kenyans. In his view, the absence of differentiation means that there is no discrimination against the Nubians and they have failed to meet the threshold set for proving the allegations of violation of the right to equality and non-discrimination. 971. The 6th Respondent also supports the position taken by the other Respondents on the issue of alleged violation of the right to equality and non-discrimination. He poses the question whether NIIMS excludes or discriminates against citizens from marginalised communities such as the Nubians. He notes that the 1st Petitioner is aggrieved that the introduction of a more complex system of registration without first addressing the challenges faced under the older, simpler system will discriminate and or exclude citizens from marginalized groups such as the Nubians who have faced difficulties in the process of registration under the current simpler system and many of them have failed to register. He notes that the 1st Petitioner has not, however, produced anything at all to support its assertion, and relies on the decision inMohammed Abduba Dida v Debate Media Limited & another [2017] eKLR in which the court held that the burden lies on a person alleging unfair discrimination to establish his claim, for it is not every differentiation that amounts to discrimination. 972. It is argued on behalf of the 6th Respondent that the jurisprudence on discrimination suggests that law or conduct which promotes differentiation must have a legitimate purpose and should bear a rational connection between the differentiation and the intended purpose. Further, that the rationality requirement is intended to prevent arbitrary differentiation, and that the right to equality does not prohibit discrimination but unfair discrimination. Its submission is that in this case, there is nothing to show that NIIMS is likely to lead to discrimination against the Nubians or any other marginalized class of persons. 973. The 1st Interested Party agrees with the position taken by the Respondents that the Petitioners have failed to establish their allegations of discrimination against the members of the Nubian Community and other marginalised groups. Its submission is that the Petitioners have not set out the manner in which the impugned amendments violate any of the rights they allege violation of. In its view, there needs to be a clear manifestation of the contravention of the fundametal rights. It cites in support the decision of the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. In its view, the Petitioners’ allegations of discrimination are vague, speculative and unsubstantiated, the Petitioners having failed to demonstrate the manner in which the implementation of the impugmed amendments have violated any constitutional provisions. 974. The 1st Interested Party contends that all the rights which the Petitioners allege shall be infringed by the implementation of NIIMS are not absolute and can be limited, citing in support Article 25 of the Constitution. It is its contention that in considering the limitation under Article 24 (1) of the Constitution, the court must bear in mind that there are no superior rights and take into consideration factors such as the nature and extent of the limitation and the need to ensure that enjoyment of rights and fundamental freedoms by one individual does not prejudice the http://www.kenyalaw.org - Page 160/174