Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR participate in the process. They however contend, relying on decision in Moses Munyendo & 908 Others vs The Attorney General and Minister for Agriculture [2013] eKLR, that Parliament has a broad measure of discretion on how it achieves the object of public participation, and that the manner in which public participation is effected varies from case to case. 593. Although the 2nd and 3rd Respondents agree that it must be clear that a reasonable level of participation has been afforded to the public, they argue that what constitutes a reasonable opportunity is incapable of precise definition. They cite the decision of the South African Constitutional Court in the Doctors for Life Case for the proposition that the nature and degree of public participation that is reasonable in a given case will depend on the nature and importance of the legislation, and the intensity of its impact on the public. Further, that the legislature should ensure that the potentially affected section of the population is given a reasonable opportunity to have a say. 594. The 2nd and 3rd Respondents concede that the impugned amendments affect the entire population resident in Kenya. In their view, however, the effect on individual Kenyans is not as radical as submitted by the Petitioners. They contend that the information being sought from Kenyans through NIIMS is substantially the same information as was being sought from them prior to NIIMS. They assert that no substantial amendments were made to the Act in that the impugned amendments merely sought, in digital form, biographical and biometric information that was already registrable under the Act. In support of this assertion they submit that prior to the amendment, section 5(1)(j) of the Act empowered the Registrar to collect such other particulars in addition to the biographical and biometric information expressly outlined in section 5(1) of the Act. It is the 2nd and 3rd Respondents’ view therefore, that the Registrar could still have requested for the information now sought under NIIMS based on the law as it existed before the impugned amendments. 595. The 2nd and 3rd Respondents submit that it would not only have been impossible but would also have amounted to imprudent use of resources to expect all Kenyan citizens and foreign nationals residing in Kenya to submit their views on the impugned amendments. It is their position that in any case, reasonable opportunity was provided for those who wished to submit views to do so. The 7th Interested Party is given as an example of an organization which utilized the opportunity for public participation to the maximum. Further, that time was of essence in the enactment of the impugned amendments as it was in the public interest to have a robust, efficient and organized system of identity of persons especially in the wake of terror attacks in the country. 596. The 2nd and 3rd Respondents cite the South African decision in Land Access Movement of South Africa Association for Rural Development and Others vs Chairperson of the National Council of Provinces and Others(CCT 40/15) [2016] ZACC 22 in which the court held that the “standard to be applied in determining whether Parliament has met its obligation of facilitating public participation is one of reasonableness” and that “some deference should be paid to what Parliament considered appropriate in the circumstances, as the power to determine how participation in the legislative process will be facilitated rests upon Parliament”. Further, that the “Court must have regard to issues like time constraints and potential expense”. 597. The 2nd and 3rd Respondents rely on the averments by Mr. Michael Sialai, the Clerk to the National Assembly, to stress that not only was public participation conducted, but it was also sufficient. According to the 2nd and 3rd Respondents, the 3rd Petitioner had submitted memoranda in support of the establishment of NIIMS and it cannot now turn around to demonise NIIMS. In their view, this amounts to approbating and reprobating and the 3rd Petitioner should be denied the orders sought on this ground. 598. In their response to the claim by the Petitioners that the enactment of the impugned amendments did not comply with the principle of public participation, the 4th and 7th Respondents submit that public participation was indeed conducted in compliance with the law. They point to the 6th Respondent’s response as clearly evidencing the fact that public participation was carried out. They place reliance on the decision in Josephat Musila Mutua & 9 others v Attorney General & 3 others [2018] eKLR in support of the assertion that the National Assembly has http://www.kenyalaw.org - Page 92/174