Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR cannot stand together, as stated by A.L. Smith J. in West Harm Church Wardens and Overseers v Fourth City Mutual Building Society (1892) 1 QB 654 at 658. Also see the detailed explanations in this respect in Francis Bennion on Statutory Interpretation, 3rd Edition, pg 214-226, and the decisions in Martin Wanderi & 19 others vs EngineersRegistration Board of Kenya & 5 others (2014) eKLR and AO O & 6 others v Attorney General & another [2017] eKLR. 816. Applying these principles to the present Petition, it is evident that the provisions of section 9A of the Registration of Persons Act on the purposes of NIIMS contradicts section 2, and the two provisions cannot operate at the same time with regards to the application of NIIMS to children. After applying the rules of statutory interpretation on implied amendment and repeal detailed out in the foregoing, it is our finding section 9A being a later amendment is deemed to have amended section 2 with respect to its application to NIIMS, and to this extent the inconsistency is thereby resolved. We therefore find that section 9A of the Registration of Persons Act and NIIMS applies to children. 817. A second concern raised by the Petitioners with respect to the collection of children’s data is that the amendments set out in section 9A(2) of the Act establish NIIMS and vest in it functions that are very generic, wide and ambiguous in scope; that there are no restrictions with respect to what the personal data collected, including children’s personal data, may be used for. In its view, given children’s vulnerable status, clear distinctions should have been prescribed, distinct from those made regarding data collected from adults, with respect to the collection, use, processing and storage of children’s data. This contention ties in with the concerns raised in the affidavit and oral evidence of Ms. Grace Bomu Mutung’u. While Ms. Mutung’u’s expertise with respect to children’s data was exposed, particularly in the cross-examination by Mr. Regeru, as rather limited, one cannot fault the principles she presented to court with regard to children, relative to adults. 818. The 2nd Petitioner also submitted that under the impugned amendments, parents have a mandatory duty to surrender their children’s information failing which they face the threat of criminal sanctions which is contrary to international laws, best practice and standards. It was its view that there was no problem or challenge so grave that requires mandatory registration of children backed by criminal sanctions. 819. We start our analysis on the concerns raised as regards the protection of children’s’ personal data and privacy by clarifying that there is no specific provision in the impugned amendments that provide for criminal sanctions for parents of children, as alleged by the 2nd Petitioner, and the 2nd Petitioner did not point us to any such amendment. The only effect of the impugned amendments that establish NIIMS in this regard is to extend the application of the Act to children, which we have already addressed in the foregoing. 820. Having made that clarification, we are of the view and find that the general principles and protections that apply with regards to the right to informational privacy, and our findings in this regard with respect to the biometric data collected under NIIMS, are also applicable to children as much as they apply to adults, and perhaps even more. This is because unlike adults, children’s ability to make reasonable choices about what information to share is limited, as a result of their limited capacities, development and education, and they may thus be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data. In addition, we are also of the view that while digital literacy may be considered a dimension of the rights of children to freedom of expression, participation and education, the digital environment can also exposes children to harmful content, as well as privacy and data protection risks. 821. The question that therefore arises is whether the impugned amendments and NIIMS provide specific protection with regard to children’s personal data, in light of the above-stated realities. In this regard, there is need for particular conditions that will apply to a child's consent to process personal data, which clearly indicate the age when a child is capable of giving such an informed consent, and the requirement of informing the child in an appropriate manner of the implications of such consent. In addition, where a child is not capable of giving such http://www.kenyalaw.org - Page 135/174