Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR 347. Dr. Kibicho also addressed himself to the contentions by George Kegoro in his Further and Supplementary Affidavit sworn on 12th April 2019 that the National Registration Bureau has no authority to collect or store biometric data from children, stateless persons, refugees and foreigners; that NIIMs does not protect children from trafficking; that the form used to collect data has no basis in law; and that the personal information collected under the impugned amendments will be in the exclusive custody of the government rather than an independent data protection authority which opens opportunities for abuse. His response was that the rights of children, stateless persons, refugees and aliens are substantially protected under the Constitution and existing legislation, including the Kenya Citizenship and Immigration Act, 2012, the Children’s Act, 2001, and the Refugee Act, 2006, and that the impugned amendments do not in any way repeal these pre-existing legislation. Moreover, that the impugned amendments categorically provide for the registration of children on NIIMS. In addition, that registration onto NIIMS is not based on any form of discrimination on any ground including nationality, because it fully incorporates the registration of citizens and non-citizens currently residing in Kenya. 348. According to Dr. Kibicho, NIIMS registration is fully under the administrative supervision of the relevant Principal Secretary, and this effectively creates an extra level of supervision and accountability to ensure the overall effectiveness and integrity of the system. Further, that the form encompassing the data capture tool implements the text and spirit of the impugned amendments and is therefore formulated within the law. 349. Dr. Kibicho denied the contention by Mr. Kegoro that the impugned amendments do not comply with the legal principles that apply to digital identification of persons set out by the World Bank in the publication “Principles on Identification for Sustainable Development: Toward the Digital Age.” He averred that contrary to the averments by Mr. Kegoro that there is a lacuna in the impugned amendments as regards the retrieval, processing, storage, use and disclosure of the collected data and that there is a need for the establishment of clear legal safeguards to ensure accountability, NIIMS clearly encompasses the said Principles. It was his position that the 2nd Petitioner has not demonstrated how NIIMS has failed to meet any of the Principles, but that in any event, the said Principles are not binding on Kenya. In Dr. Kibicho’s view, there already exists a healthy and robust legislative framework on data retrieval, processing, storage, use and disclosure of information such as is contained under NIIMS. 350. Response was also made to the averments by Mr. Kegoro that the collection of DNA without safeguards threatens the right to privacy and is intrusive; that despite the benefits of NIIMS and digitization in service delivery, precautionary measures must be taken to guard against breaches by internal and external parties; and that the constitutional objective of public participation was not met in NIIMS. Dr. Kibicho reiterated that NIIMS registration did not involve collection of DNA. He clarified however, that DNA collection is crucial in certain circumstances, such as prevention of crime including terrorism, and in the identification of bodies in case of accidents where all other biometrics are destroyed or unavailable. 351. It was his averment, however, that NIIMS will not be freely accessible by third parties, either private or foreign, and is predicated on the law, namely the Registration of Persons Act, which is operating within the larger legal framework on data protection. Furthermore, the government was in the process of enacting the Data Protection Bill, 2019 to bolster this framework. According to Dr. Kibicho, NIIMS as a single source of truth offers a more secure option of data protection by reducing the points for breaches, and as admitted by the 2nd Petitioner, this is the global trend in personal identification databases. He noted that despite the Petitioners concerns, over thirty-one (31) million individuals, representing approximately sixty-five percent (65%) of Kenya’s population, were enrolled during the NIIMS registration exercise. 352. Pursuant to a notice to cross-examine issued by the Petitioners, Dr. Kibicho testified as DW3 and was crossexamined on his affidavit evidence set out above. He confirmed that the data capture form for the Huduma Namba registration had sections that required personal and biometric bio-data. He further confirmed that although the form was primarily meant for personal identification, it also requested for other information on agricultural activities and http://www.kenyalaw.org - Page 51/174