Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR its submission that the collection of personal information on children and non-citizens is ultra vires section 2 of the Act. 796. With respect to the contention by the Respondents that the collection and digitisation of children’s data will help in combating child labour and child trafficking, the 5th Interested Party argues that this will not in fact be the case, that the use of biometrics does not help in the protection of children and only creates their digital identity earlier than is necessary. 797. In its response to the arguments on this issue, the 1st Respondent contends that from a national security perspective, NIIMS would play an indispensably crucial role in obviating and combating contemporary crimes such as terrorism, child labour and trafficking in children, and would aid in keeping the country safe from terrorist attacks. 798. In their submissions in response, the 2nd and 3rd Respondents note the constitutional requirement under Article 53 that a child’s best interests shall be the primary consideration in any matter concerning the child. They further submit that the implementation of NIIMS is in the best interests of children. This is because it enables the State to fulfil its constitutional obligations to children, which include the obligation to protect and promote children’s right to free and compulsory basic education, basic nutrition, shelter and healthcare, as well as the obligation to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour in accordance with Article 53 of the Constitution. 799. The 2nd and 3rd Respondents further note that the constitutional obligations are also provided for in international instruments ratified by Kenya, among them Article 8(1) of the 1989 United Nations Convention on the Rights of the Child and Article 24(1) of the 1966 International Covenant on Civil and Political Rights. The 2nd and 3rd Respondents submit that the non-existence of a mechanism for uniquely identifying children has prevented the government from meeting its obligations under the Constitution and international covenants. It is their submission that birth certificates which act as the only contemporary legal means of identification of children are solely distinguished by use of serial numbers and do not bear a child’s fingerprints, facial image or any other biometric. They argue that as a result, criminal elements have capitalized on the limitations of a birth certificate to perpetuate child trafficking and child labour and other child-related offences. In their view, NIIMS would cure the mischief that is attributable to the current child identification system. 800. The 2nd and 3rd Respondents term the allegation that NIIMS would violate children rights due to the absence of mechanism for correcting and updating inaccurate information on children’ data unfounded. It is their submission that the legislative provisions impugned by the Consolidated Petitions provide for corrective measures. They cite in this regard section 9A(2) (i) of the Act which empowers NIIMS to correct errors in registration details, if so required by a person or on its own initiative in order to ensure that the information in the system is “accurate, complete, up to date and not misleading.” They submit that parents and guardians of children may therefore, correct and update the identity information of the children for whom they are responsible. 801. The 2nd and 3rd Respondents submit that as demonstrated by the NIIMS data capture form, the children data to be stored under NIIMS would be limited to registration and identity data. They assert that the principle of data minimization was adopted in the design architecture of NIIMS in the sense that any information that may be incorporated into the NIIMS database from databases of other government agencies would be limited to information on registration of persons, citing in this regard section 9A(2) (c) of the Act. 802. The 2nd and 3rd Respondents assert that the fear of threat of constant surveillance of children is unfounded. It is their case that they have demonstrated that functional data will remain resident in their respective functional databases as maintained by various ministries, departments and agencies. In their view, in the unlikely event that the NIIMS database was to be compromised, the functional data of children such as academic and health records http://www.kenyalaw.org - Page 132/174