Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR Terror Victims Support Initiative being the 1st, 2nd, 7th, 8th and 9th Interested Parties joined the Respondents in opposing the Petitions. 9. The Petitions proceeded to hearing by way of affidavit evidence, oral testimony including by expert witnesses, and written submissions which were highlighted by the parties. We need at this stage to draw attention to the fact that after completion of the hearing, and before delivery of judgment, the Data Protection Act No. 29 of 2019 was enacted by the National Assembly. The 6th Respondent thereupon sought directions from the Court in light of this development. The Court considered it prudent that the parties be given an opportunity to comment on the Data Protection Act and set a further hearing date to receive submissions in this regard. We set out hereunder the respective pleadings and evidence by the parties. For convenience, we shall summarise the cases for the principal parties alongside the respective cases of the Interested Parties who supported their positions. THE PETITIONERS’ CASES The 1st Petitioner’s Case 10. The 1st Petitioner, the Nubian Rights Forum, is a human rights organization that advocates for the rights of the Nubian community in Kenya. Its Petition is dated 14th February 2019 and is supported by the affidavit of its Chairman, Mr. Shafi Ali Hussein, sworn on even date and a further affidavit sworn by the said deponent on 12th April 2019. Additional affidavits filed by the 1st Petitioner were sworn on 11th April 2019 by Dr. Thomas Fisher, a Research Officer with Privacy International, and on 12th April 2019 by Ms. Fatuma Abdulrahman and Mr. Ahmed Khalil Kafe, both members of the Nubian community. 11. The 1st Petitioner also filed a witness statement by Mr. Anand Venkatanarayanan, who gave oral testimony as one of the expert witnesses for the Petitioners. Mr. Shafi Ali Hussein, Ms. Fatuma Abdulrahman and Mr. Ahmed Khalil Kafe were also cross-examined on their affidavits at the request of the 4th and 7th Respondents. 12. The 1st Petitioner is aggrieved by several aspects of the impugned legislation, including its implementation. The first aspect of its case is that in order to constitute the NIIMS database established under section 9A of the Act, the government commanded that Kenyan citizens and foreign nationals provide sensitive personal information purportedly to establish, verify and authenticate their identity, and subsequently receive a unique identity number, known as Huduma Namba, through a 30-day nationwide mass biometric registration exercise. 13. The 1st Petitioner contended that the technical specifications and planned practical implementation of NIIMS was opaque, with inadequate and conflicting information provided to the public. Its position was that the process by which the NIIMS system has been established and the information revealed to date concerning its design, implementation and administration strongly suggests that the lessons from international experiences with digital identity systems have not been sufficiently reviewed and applied by the Respondents. The experiences and challenges of the Aadhaar system in India were cited as an illustration of the problems likely to be encountered with NIIMS. 14. The 1st Petitioner further contended that even though the government has stated that it would not collect Deoxyribonucleic Acid (DNA) and Global Positioning System (GPS) coordinates, the legislative amendments place no limits on the scope of data that can be captured and stored in the NIIMS database. 15. The second aspect of the 1st Petitioner’s grievance against NIIMS, as we understand it, is with regard to its linkage to the delivery of an undefined sphere of government services, including access to identification documents, universal healthcare, fertilizer subsidies, cash transfers, affordable housing and education. The 1st Petitioner complained that members of the Nubian community have challenges acquiring identity documents under the existing system under section 8 of the Act. It claimed that the section grants registration officers broad authority http://www.kenyalaw.org - Page 4/174