Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR into an individual’s privacy is proportionate to the public interest to be served by the intrusion. 730. It was his submission that sensitive information such as tribe, race, HIV status, among others specifically stood excluded, and that following this Court’s orders of 1st April, 2019, the only biometric information that was actually collected during the pilot phase and the mass registration exercise was only limited to the fingerprints, which is considered to be the core biometric information. That it is frequently utilized globally to ascertain the identity of a person. In that regard, they submitted that the information gathered was and is actually non-invasive and non-intrusive identity information. 731. The 1st Respondent cites the decision by the Indian Supreme Court decision in Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others Writ Petition (Civil) No. 494 of 2012, where it was held that demographic information, both mandatory and optional, and photographs does not raise a reasonable expectation of privacy unless under special circumstances such as juveniles in conflict of law or a rape victim’s identity. Further, that it was held that there is no reasonable expectation of privacy with respect to fingerprint and iris scan as they are not dealing with the intimate or private sphere of the individual but are used solely for authentication. 732. In addressing children’s privacy concerns, it was the 1st Respondent’s submission that implementation of NIIMS would be in the best interests of children, for the simple reason that it will enable the State to fulfil its constitutional obligations of protecting and promoting, inter alia: children’s’ right to free and compulsory basic education; basic nutrition, shelter and healthcare; to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment; and hazardous or exploitative labour as under Article 51(1) of the Constitution. 733. In regard to the claim that collection of DNA identity data exercise is too intrusive and would violate the privacy of data subjects, the 1st Respondent contends that the practice is permissible in Kenya, as held in L.N.W. v. Attorney General & 3 Others [2016] eKLR where it was held that there is need for provision for DNA testing to be undertaken to establish paternity where it is denied. 734. The 4th and 7th Respondents on their part submit that the personal information collected through NIIMS is of a similar nature as that currently being held by various government agencies. Further, that the purpose is to integrate and consolidate the information in order to create, manage and operate a digitized national population register as a single source of personal information on all Kenyan citizens and residents. It was also submitted that the information will assist the government to meet its obligation of providing key services to its citizens including security, healthcare, and education among others 735. According to the 4th and 7th Respondents, the Petitioners’ grievance is with the collection of DNA and GPS information. With respect to DNA, they submitted that it is a unique identifier that is not part of the personal information collected by the data capture tools for purposes of registration under NIIMS. Further to that, they submitted that GPS coordinates and DNA information were not collected by the data capture tools in place during the mass registration exercise pursuant to this Court’s ruling of 1st April, 2019, 736. The said Respondents however still submitted on the importance of collecting DNA and GPS, and contended that such information would be critical in enabling many technologies, and that the collection of personal information of citizens is central to the proper functioning of the State. To that end, reference was made to the United States Supreme Court case ofMargaret O’Hartigan vs Department of Personnell ET AL 118 Wn. 2d 111, P2d 44 (No. 56063-3 En Banc)where it pointed out that disclosure of intimate information to governmental agencies is permissible if it is carefully tailored to meet a valid governmental interest, and provided the disclosure is no greater than is reasonably necessary. The 4th and 7th Respondents therefore submit that the government interest in collecting information through NIIMS is in keeping State’s duty of care to its citizens, and that vital and reliable data is central to the discharge of this duty. http://www.kenyalaw.org - Page 119/174