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Judgement on NIIMS (Huduma Namba)

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Judgement on NIIMS (Huduma Namba) Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL & JUDICIAL REVIEW DIVISION CONSOLIDATED PETITIONS NO. 56, 58 & 59 OF 2019 BETWEEN NUBIAN RIGHTS FORUM.................................................................1ST PETITIONER KENYA HUMAN RIGHTS COMMISSION......................................2ND PETITIONER KENYA NATIONAL COMMISSION ON HUMAN RIGHTS.........3RD PETITIONER VERSUS THE HON. ATTORNEY-GENERAL.................................................1ST RESPONDENT THE CABINET SECRETARY, MINISTRY OF INTERIOR & CO-ORDINATION OF NATIONAL GOVERNMENT...................2ND RESPONDENT THE PRINCIPAL SECRETARY, MINISTRY OF INTERIOR & CO-ORDINATION OF NATIONAL GOVERNMENT...................3RD RESPONDENT THE DIRECTOR, NATIONAL REGISTRATION BUREAU........4TH RESPONDENT THE CABINET SECRETARY, MINISTRY OF INFORMATION, COMMUNICATION & TECHNOLOGY.........................................5TH RESPONDENT THE SPEAKER, NATIONAL ASSEMBLY......................................6TH RESPONDENT KENYA LAW REFORM COMMISSION.........................................7TH RESPONDENT AND CHILD WELFARE SOCIETY..............................................1ST INTERESTED PARTY AJIBIKA SOCIETY...............................................................2ND INTERESTED PARTY MUSLIMS FOR HUMAN RIGHTS INITIATIVE.............3RD INTERESTED PARTY HAKI CENTRE......................................................................4TH INTERESTED PARTY LAW SOCIETY OF KENYA.................................................5TH INTERESTED PARTY INFORM ACTION.................................................................6TH INTERESTED PARTY BUNGE LA WANAINCHI.....................................................7TH INTERESTED PARTY Petition 56, 58 & 59 of 2019 (Consolidated) | Page 1 of 223. Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR INTERNATIONAL POLICY GROUP.................................8TH INTERESTED PARTY TERROR VICTIMS SUPPORT INITIATIVE....................9TH INTERESTED PARTY JUDGMENT INTRODUCTION 1. On 20th November 2018, the National Assembly enacted Statute Law (Miscellaneous Amendment) Act No. 18 of 2018. The President of the Republic of Kenya gave his assent to the said Act on 31st December 2018, and it commenced operation on 18th January 2019. 2. The effect of the Act was to amend several provisions of a number of existing statutes, among them the Registration of Persons Act (Cap 107 of the Laws of Kenya) (hereinafter referred to as “the Act”). The amendments to the Act establishes a National Integrated Identity Management System (hereinafter “NIIMS”) that is intended to be a single source of personal information of all Kenyans as well as foreigners resident in Kenya. 3. A new section 9A was introduced to the Act by the amendments, and it established NIIMS in the following manner: “9A (1) There is established a National Integrated Identity Management System. (2) The functions of the system are — (a) to create, manage, maintain and operate a national population register as a single source of personal information of all Kenyan citizens and registered foreigners resident in Kenya; (b) to assign a unique national identification number to every person registered in the register; (c) to harmonise, incorporate and collate into the register, information from other databases in Government agencies relating to registration of persons; (d) to support the printing and distribution for collection all national identification cards, refugee cards, foreigner certificates, birth and death certificates, driving licenses, work permits, passport and foreign travel documentation, student identification cards issued under the Births and Deaths Registration Act, Basic Education Act, Registration of Persons Act, Refugees Act, Traffic Act and the Kenya Citizenship and Immigration Act and all other forms of government issued identification documentation as may be specified by gazette notice by the Cabinet Secretary; (e) to prescribe, in consultation with the various relevant issuing authorities, a format of identification document to capture the various forms of information contained in the identification documents in Petition 56, 58 & 59 of 2019 (Consolidated) | Page 2 of 223. Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR paragraph (d) for purposes of issuance of a single document where applicable; (f) to verify and authenticate information relating to the registration and identification of persons; (g) to collate information obtained under this Act and reproduce it as may be required, from time to time; (h) to ensure the preservation, protection and security of any information or data collected, obtained, maintained or stored in the register; (i) to correct errors in registration details, if so required by a person or on its own initiative to ensure that the information is accurate, complete, up to date and not misleading; and (j) to perform such other duties which are necessary or expedient for the discharge of functions under this Act. (3) The Principal Secretary shall be responsible for the administration, coordination and management of the system.” 4. Section 3 of the Act on interpretation was also amended to include the following new definitions: “Insert the following new definitions in proper alphabetical sequence- "Biometric" means unique identifiers or attributes including fingerprints, hand geometry, earlobe geometry, retina and iris patterns, voice waves and Deoxyribonucleic Acid in digital form; "Global Positioning System coordinates" means the unique identifier of precise geographic location on the earth, expressed in alphanumeric character being a combination of latitude and longitude; "physical form" means existing in a form that one can see and touch; and "Principal Secretary" means the Principal Secretary in the ministry responsible for matters relating to registration of persons.” 5. The Nubian Rights Forum (the 1st Petitioner), the Kenya Human Rights Commission (the 2nd Petitioner), and the Kenya National Commission on Human Rights (the 3rd Petitioner), are aggrieved with the amendments made to the Act, which they claim were passed in violation of the Constitution and in bad faith and pose serious and immediate threats to fundamental rights and freedoms protected under the Bill of Rights. They therefore respectively filed Petitions in this Court, namely Nairobi High Court Petition No 56 of 2019, Nairobi High Court Petition No 58 of 2019 and Nairobi High Court Petition No 59 of 2019, which petitions were subsequently consolidated for hearing by this Bench. 6. The position taken by the Petitioners was supported by Muslims for Human Rights, Haki Centre, Law Society of Kenya and Inform Action which were joined to the proceedings as the 3rd, 4th, 5th and 6th Interested Parties respectively. Petition 56, 58 & 59 of 2019 (Consolidated) | Page 3 of 223. Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR 7. The Respondents in the Consolidated Petitions are the Honourable Attorney General (the 1st Respondent); the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government (the 2nd Respondent); the Permanent Secretary, Ministry of Interior and Co-ordination of National Government (the 3rd Respondent); the Director of National Registration (the 4th Respondent); the Cabinet Secretary for Information, Communication and Technology (the 5th Respondent); the Speaker of the National Assembly (the 6th Respondent); and the Kenya Law Reform Commission (the 7th Respondent). 8. The Child Welfare Society of Kenya, Ajibika Society, Bunge La Mwananchi, International Policy Group and 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
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