Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR
rape cases. He further noted that a person’s DNA can also be transferred to a murder victim or a weapon, even if
they never touched it, falsely implicating them in a crime. He illustrated the challenges of mix-up in DNA by citing
several examples from media reports in England and the United States about persons who had been charged and in
some cases convicted following mix-ups in DNA analysis.
224. Mr. Malombe averred that no other country in the world has legislation which allows the mandatory collection
of DNA from whole populations, or inclusion of DNA as part of a national identification system. He averred that
mandatory collection of DNA from whole populations violates international principles on human rights.
225. Mr. Malombe averred that to meet international privacy standards enshrined in the International Covenant on
Civil and Political Rights and the Constitution, a DNA collection and retention mechanism must be extensively
regulated, narrow in scope, and proportionate to meeting a legitimate security goal. Further, that international best
practice would require Kenya to incorporate further safeguards into its DNA gathering system, including legal
provisions to restrict the circumstances in which DNA may be collected and retained, and restrictions on the
purposes for which stored data may be used. In his view, the impugned amendments fail this test.
226. Mr. Malombe cited a report titled ‘Establishing Best Practice for Forensic DNA Databases’ with respect to
the key best practices for the protection of privacy in the collection of DNA. These include regulations on fully
informed consent, quality assurance of laboratories, restriction of purposes, rules for expungement of data and
destruction of samples. He averred that these safeguards should be enshrined in law before establishing a DNA
database. Like the other deponents for the 2nd Petitioner, Mr. Malombe’s prayer was that the court should protect
the rights of citizens and allow its Petition.
227. The third deponent who swore an affidavit in support of the 2nd Petitioner’s case was Ms. Alice Munyua, who
described herself as the Policy Advisor, Africa, of the Mozilla Corporation, the maker of the Firefox browser used
by hundreds of millions of people around the world. She averred that from her work with Mozilla, she had gained
substantial expertise and competence on issues of privacy, security, data protection and digital ID, and had engaged
with governments around the world on the said issues.
228. Ms. Munyua conceded that there is no doubt that legal identification is generally valuable for society, and that
such legal identification schemes are enablers for the effective delivery of services and engagement between
government and its citizens. She cited in this regard the UN Sustainable Development Goals (SDGs) which call for
"providing legal identity for all, including birth registration" by 2030. She averred that without these commonly
recognized forms of official identification, individuals are at risk of exclusion.
229. Ms. Munyua contended that at Mozilla, it had been recognised that Kenya appeared to have various challenges
with the current legal identification system. She also observed that the Office of the Ombudsman in the
Commission on Administrative Justice (CAJ) in Kenya had, in 2015, declared a crisis in the issuance of legal
documentation in Kenya. That it had also provided evidence of widespread discrimination in access to
documentation of identity, including access to proof of citizenship. In her view, transitioning to a digital
identification system without first addressing the existing problem of widespread discrimination will not solve
these problems. It will, rather, introduce several additional grave concerns including violations of privacy, security
risks, increased discrimination and exclusion. Ms. Munyua relied in support on the CAJ investigation report on the
crisis of acquiring identification documents in Kenya.
230. According to Ms. Munyua, transitioning to a digital biometric identification model is not required in order to
realize the benefits of legal identification. She averred that to assume that "leapfrogging" to digital identification is
inherently superior ignores the risks that digital, particularly biometric identifications, bring when deployed on a
national scale.
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