Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR community and other marginalised groups as compared with other Kenyans. What we found is an amendment to an existing statute that introduces a system of registration into the population register that requires that one should be in possession of identification documents issued under other statutes or statutory provisions. It was our view that should there be challenges with those other statutes or provisions, then such challenges cannot properly be raised in the present proceedings in which the legislation or provision in contention is entirely different. 1043. We also considered the question whether the Petitioners had laid a factual basis for the allegation that there is violation of the right to equality and non-discrimination against the Nubians and other marginalised communities. We were unable to discern violation of the right to equality and non-discrimination from the evidence presented before us. (b) On Exclusion 1044. We addressed ourselves to the question whether obtaining the Huduma Namba is mandatory, a condition precedent to obtaining government services, and therefore likely to result in violation of the right to nondiscrimination. We noted that all the parties were agreed that the use of digital data is the way of the future. The challenge is to ensure among other things, that no one is excluded from the NIIMS and the attendant services. This may occur due to lack of identity documents, or lack of or poor biometric data, such as fingerprints. In our view there may be a segment of the population who run the risk of exclusion. 1045. We therefore found that there is thus a need for a clear regulatory framework that addresses the possibility of exclusion in NIIMS. Such a framework will need to regulate the manner in which those without access to identity documents or with poor biometrics will be enrolled in NIIMS. While we recognize the possibility of this exclusion, however, we did not find that it is in itself a sufficient reason to find NIIMS unconstitutional. Cost 1046. The final issue to consider is who should bear the costs of the consolidated Petitions. The applicable principles are that costs follow the event. However, the award of the costs is also at the discretion of the Court. As this is a matter which clearly raises public interest concerns, it is our view that each party shall bear its own costs. Disposition 1047. In light of our findings above, we hereby grant, the following orders: I. A declaration that the collection of DNA and GPS co-ordinates for purposes of identification is intrusive and unnecessary, and to the extent that it is not authorised and specifically anchored in empowering legislation, it is unconstitutional and a violation of Article 31 of the Constitution. II. Consequently, in so far as section 5(1)(g) and 5(1)(ha) of the Registration of Persons Act requires the collection of GPS coordinates and DNA, the said subsections are in conflict with Article 31 of the Constitution and are to that extent unconstitutional, null and void. III. The Respondents are at liberty to proceed with the implementation of the National Integrated Identity Management System (NIIMS) and to process and utilize the data collected in NIIMS, only on condition that an appropriate and comprehensive regulatory framework on the implementation of NIIMS that is compliant with the applicable constitutional requirements identified in this judgment is first enacted. IV. Each party shall bear its own costs of the Consolidated Petitions http://www.kenyalaw.org - Page 173/174