Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR submits, existing criminal laws such as sanctions prescribed by the Kenya Information and Communications Act, the Computer Misuse and Cybercrimes Act of 2018 and the Access to Information Act are not sufficient deterrents for the protection of personal data. It was its argument that once personal data is breached and misused, the devastating effects such loss would have on data subjects cannot be remedied by any amount of criminal punishment against the offender and the court in the Julian Robinson Case eruditely captured this problem by stating that there must be robust systems that minimise data theft and the punishment for data misuse and abuse must be such that there is a strong deterrent element in the data protection regime. 725. On the argument that NIIMS was established for purposes of compliance with Kenya’s time bound international obligations pursuant to section 17(3)(c) of the Access to Information Act, the 2nd Petitioner submits that there is no correlation to support the argument that mandatorily collecting biometric information of the nature prescribed by the impugned amendments is at all necessary for purposes of computerizing records and information management systems or to facilitate more efficient access to information. It was further its submission that collection of biometric data is a new phenomenon under the Registration of Persons Act and the risks attendant to storing the biometric data in a central database is subjecting it to manipulation with the possibility of generation of new data which risk was highlighted in the Julian Robinson Case. 726. The 3rd Petitioner’s relies on the case of Institute of Social Accountability & another v National Assembly & 4 others (supra) which cited with approval the Canadian Supreme Court in theR vs Big M Drug Mart Ltd (supra) which stated that both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. That there is therefore a real threat that NIIMS is susceptible to breach that would occasion irreparable harm and damage to the people, and indeed the country at large. 727. The 5th Interested Party submits in support of the Petitioners that to determine the purpose of a legislation, a court must be guided by the object and purpose of the impugned statute, which object and purpose can be discerned from the legislation itself as was stated by the court in Geoffrey Andare v Attorney General & 2 Others, [2016] eKLR. However, if the purpose is not clear from the Act, then this Court has the discretion to interrogate the Hansard to determine the legislative intent. Any other source of information is speculative and conjecture at best. Further, that Section 7 of the Sixth Schedule to the Constitution offers guidance that laws such as this one must be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution. 728. The 5th Interested Party further submits that even if the purposes explained in the Respondents’ pleadings were contained in the legislation, the same would not constitute a constitutional purpose. In the 5th Interested Party’s view therefore, NIIMS is a superfluous system serving no specific purpose, and its potential harms far outweigh any peripheral advantages. Consequently, the court was urged to find that if any activity is to be done under NIIMS, a proper legislative direction must be given detailing its purpose, safeguards to be used and in line with both Article 31 and Article 24 of the Constitution. 729. The Respondents replied to the arguments made on the nature and need of the data in NIIMS in their submissions. With particular respect to unique identifiers or attributes including fingerprints, location information, land reference number, postal address, and GPS coordinates, the 1st Respondent submits that such information is a standard requirement all over the world, and are not in any way disproportionate to the legitimate aims of the State. Further to that, the requirement for GPS location is to comply with section 5(g) of Registration of Persons Act, and merely have a geographical expression of the location of a physical place for information purposes with a primary objective of facilitation of government services. To buttress the instances when the right to privacy can be limited, the 1st Respondent urges the Court to find persuasion in the reasoning of the High Court in Coalition for Reform and Democracy (Cord) & 2 Others V Republic of Kenya &10; Others [2015] eKLR where it was held that the right to privacy can never be absolute, and that a balancing test has to be applied to determine whether the intrusion http://www.kenyalaw.org - Page 118/174