Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR 719. Closely related to the first limb of the issue at hand is the second limb that that the data collected pursuant to the impugned amendments is not supported by the stated purposes of NIIMS and is purpose free. The 1st Petitioner submits in this regard that the principle of purpose limitation is to form a consensus view of the purpose of data collection, which in their view does not exist in this case. It further submits that data collection for the purposes of crime fighting, surveillance or countering terrorism is counterproductive to data collection for the purpose of service delivery. Nevertheless, it was its submission that the Respondents variously claim all three and more. Further, because the Data Capture Form was so extensive and the purposes of the NIIMS system so opaque, there was no reliable way to know the specific purpose of each piece of data collected for a given individual, and to track whether the data are only used for that purpose. 720. The 1st Petitioner contends that the impugned amendments do not state a single, specific purpose of NIIMS, and that the Respondents’ replying affidavits and expert evidence take contradictory positions with regard to the purpose and effect of the NIIMS system, and its relationship to other existing identification infrastructure. For example, that the 5th Respondent’s response to the petition of the Kenya National Commission on Human Rights states that NIIMS will eliminate vetting for national identity cards, but the “Digital Data Capture” form does not collect sufficient information to determine nationality, nor were the registration officials performing enrolments competent to make such determinations, when in fact Kenyan law does not currently provide for any reliable legal or administrative means of confirming citizenship by birth. Meanwhile, the 2nd Respondent states that “NIIMS will not replace the previous registration systems in the short term.” 721. That the Respondents, furthermore, repeatedly state that DNA was not collected, while also affirming that DNA data is essential for posthumous identification and the prevention of child trafficking and terrorism, two important capabilities of the NIIMS system. Moreover, unlike other foundational digital identity systems, NIIMS boasts forensics and crime fighting among its purposes, with the most-cited purpose, being improved service delivery, relegated lower on the list. Accordingly, the amendment itself does not specify or restrict the potential purposes of the NIIMS system in any way, nor does it provide an exhaustive list of the potential functions of the NIIMS system itself. 722. The 2nd Petitioner submits that the averments by the Respondents on the stated benefits of NIIMS erroneously presuppose that the stated challenges stem from the lack of a unique identification number, and that unless NIIMS is operationalized in its current form and with the aid of criminal sanctions, then the challenges will persist. However, they submitted that no empirical or other evidence has been adduced in support of this assertion or that less invasive alternatives were considered and/or were unavailable to achieve the same objective, and no such alternatives were even discussed. Reference was made to the decision by the Supreme Court of Jamaica in the Julian Robinson Case where it addressed a similar situation. 723. It was the 2nd Petitioner’s submission that the African Union Convention on Cyber Security and Personal Data Convention adopted by the 23rd Ordinary Session of the Assembly of the Union, Malabo, 27th June 2014 (hereafter “The Malabo Convention”) stresses the protection of personal data, and urges a balance between the use of information and communication technologies and the protection of the privacy of citizens. It is pursuant to the said convention that the Data Protection Bill was sponsored and in line with the Malabo Convention, the Data Protection Bill 2018 proposes among other safeguards the creation of an independent Data Protection Authority, specifically, the Kenya National Commission on Human Rights, which is a Constitutional Commission established under Section 3 of the Kenya National Commission on Human Rights Act No. 14 of 2011. 724. On the issue that collection of DNA is justified and necessary for crime prevention including child trafficking, the 2nd Petitioner submits that no empirical evidence has been adduced by the Respondents to justify the claim that NIIMS will prevent child trafficking or that countries that have managed to curb trafficking have done so by using a unique identifier or biometric personal data. In their view, taking measures to address the foregoing challenges would be less intrusive alternatives of achieving the stated objectives of NIIMS. In any event, the 2nd Petitioner http://www.kenyalaw.org - Page 117/174