Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR NIIMS; or that the means used to achieve the stated objectives of NIIMS are the only available and viable alternatives that would least violate the right to privacy; or that the benefit arising from the violation is in fact greater than the harm to the right. 892. The 3rd Petitioner on its part points out that Article 24 of the Constitution sets out clear, concrete and objective circumstances in which a right or fundamental freedom in the Bill of Rights may be limited. 893. The 5th Interested Party introduces the argument that the collection of personal information as was done to implement NIIMS was ultra vires the Registration of Persons Act, since the information collected using the data capture form is identical to the information to be collected by the Principal Registrar under Section 5 of the Registration of Persons Act. According to the 5th Interested Party, the power to collect that kind of information is only reserved for the Principal Registrar. For this reason, counsel urged the court to find that the Registration of Persons Act does not grant any powers to any person to collect personal information under NIIMS, and the information collected during the mass registration exercise was therefore unlawful and consequently unconstitutional. It is however noted by this Court that the Petitioners did not plead this specific illegality in their Petitions, and the Respondents therefore had no opportunity to respond to matters being raised by the 5th Interested Party for the first time in submissions. 894. The 6th Interested Party submits that the Respondents deliberately sought to circumvent Article 24 of the Constitution by pretending that the amendments are minor and of no significance. However, that as long as it is demonstrable that the amendments threaten and/or limit a fundamental right or freedom, the Respondents cannot escape the requirement to comply with Article 24 of the Constitution. According to the 6th Interested Party, the amendment to the Registration of Persons Act to include biometric data is excessive, unwarranted, unreasonable and unjustifiable in an open and democratic society and impacts directly on an individual’s right to privacy and bodily integrity secured under Article 31 of the Constitution. 895. Further, that the requirement or collection of DNA of any individual is generally and widely recognised to be the exception rather than the norm and its retrieval or collection must be for a specific proven purpose, specifically authorised by a legal warrant where proved to be necessary and on a case-by-case basis. In addition, that the data is easily susceptible to serious abuse and/or misuse in the wrong hands that can lead to irreparable damage including security threats to individuals. 896. The 1st Respondent submitted on this issue in rebuttal, and contends that the Constitution sanctions the requisition or revelation of one’s private affairs or that of the family where necessary. It beseeched the court not to adopt the Jamaican decision in Julian J Robinson Case (supra) on the basis that the Court has the obligation to place those decisions in their rightful context whenever it applies comparative jurisdiction. They urged the Court to find persuasion in the dissenting opinion in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR . 897. It was the 1st Respondent’s submission that there was a clearly set out legitimate State aim in seeking the information; to create an integrated national identity management system. To further emphasize the fact that constitutional rights are not absolute, the 1st Respondent finds persuasion in R vs Director of Serious Fraud Office, ex parte Smith [1993] AC 1, where it was held that few would dispute that some curtailment of the liberty is indispensable to the stability of society. 898. In conclusion, the 1st Respondent submits that the amendments in issue were legal, contemplated in the Constitution and for a defined legitimate State aim. That it accounts for proportionate interference within the context of contemporary practices, developments and sophistication of life. Further, that it was in the province of the political arm of the government to determine what constitutes necessary information for government purposes, and as such Courts ought to exercise some measure of deference to the repository of the constitutional powers on http://www.kenyalaw.org - Page 148/174