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At court for day 3 of hearings in the #HudumaNamba case

Today three members of the Nubian community will testify about the challenges millions of Kenyans face in accessing documentation & risks of exclusion from #NIIMS
Court proceedings for day 3 of the #HudumaNamba #NIIMS case are now beginning
Follow @NubianRights & @Haki_na_Sheria for real-time #HudumaNamba case updates
Today will focus on cross-examination of three deponents who provided evidence for @NubianRights, the first petitioner in the #HudumaNamba case
First up is Mr. Ahmed Khalil, a member of the Nubian community in Kibera

#HudumaNamba #NIIMS
The witness prefers to be cross-examined in Ki-Swahili, but the counsel for the respondents prefers English for clarity

After some discussion about assistance for either side, they are moving forward in Swahili for now

Mr. Ahmed is 72 years old

He is being introduced to the court by counsel for petitioners @yussufugas

Mr. Ahmed submitted an affidavit but was unable to sign it because he previously suffered from a stroke

Counsel for respondent National Registration Bureau will now cross-examine Mr. Ahmed

They have switched to a mix of both English & Swahili

Counsel for NRB asks if the grievance of the witness is the difficulty in getting an ID and when he first acquired an ID

Mr. Ahmed says he was first issued an ID card in 1962

Counsel for NRB asks if the witness lost his ID card more than 4 years ago

Witness Mr. Ahmed Khalil says the ID was lost long ago - approximately around 1972 after he left the (police) force and returned to Nairobi

Witness is asked if he lost the ID card so long ago, is it true he only applied for a replacement in 2018 as stated in his affidavit?

The witness confirms

Counsel for GoK states the issue is therefore not with the ID system but the failure of the witness to apply

Cross-examination has ended and counsel for petitioners @yussufugas has began re-examination

The witness is asked about his previous work with Kenya police - he joined the force around 1965

The witness left the police force in 1972 and had an ID at that time

Counsel for the petitioners is asking the witness when he first applied for a replacement ID

The witness Mr. Ahmed Khalil replies that he first applied once the police began issuing abstracts, a long time ago

Up til now, the witness does not have an ID

What does he have now? asks counsel for petitioners

The witness replies a few weeks ago the government approached him and asked him to apply - now he has a waiting card

The witness is asked why he came to court

The witness replies he hoped the court could help with his registration process - he wants to apply for NHIF & NSSF

The witness states that when #HudumaNamba began it scared him because to apply for Huduma Namba you need an ID
The counsel for GoK has said the questions have gone beyond the scope of the cross-examination

Counsel for petitioners has no further questions

The witness is released

The second witness Mr. Shafi Ali Hussein is being introduced by counsel @yussufugas

Witness is the CEO of Nubian Rights Forum and adopts his affidavits as evidence

Mr. Shafi will now be cross-examined by counsel for GoK respondent National Registration Bureau

Mr. Shafi is being asked if any other office bearers of the Nubian Rights Forum disclosed in the affidavit

The witness states the other office bearers are not disclosed in the affidavits other than the third witness to be cross-examined today

GoK counsel asks witness Mr. Shafi the scope of his involvement with Nubian Rights Forum (NRF)

Witness explains NRF has a legal empowerment program, a GBV program, and governance work

Witness is asked about the dates he filed affidavits

"When you signed the 1st affidavit on Feb 14th, had the NIIMS process commenced?"

Witness: no

"On the 12th April 2019 had NIIMS commenced?"

Witness cannot recall - counsel says he speaks to an ongoing process
Counsel asks if witness has a perspective of #HudumaNamba before it commenced, as it happened, and now with hindsight as it has concluded

Witness confirms

Counsel for NRB refers witness to the Constitution which "fundamental rights" he is referring to in paragraph 4 of his affidavit and whether he has named the fundamental freedoms in the paragraph

Counsel has asked the question several times

Counsels for petitioners raise an objection that the GoK counsel should lower his voice and not intimidate the witness

Judge Nyamwea is assisting with re-asking the question

The questioning has moved forward

GoK counsel asks if the witness had stated in the affidavit which "provisions" and which "bill" he refers to in another paragraph

The witness is silent in response

GoK counsel asks if the difficulties the witness have existed for a long time

Witness agrees and adds "You cannot come with NIIMS without addressing these issues of discrimination"

GoK asks if the difficulties arise *because* of NIIMS

Witness: no

Witness is asked whether his issue with the identification committees is that they have become more security oriented

Witness says yes

Who is subjected to vetting? Is it everyone or only some people?

Witness states there are two vettings

GoK refers again to "identification committees" - who is subjected to those identification committees?

The witness states one member of the Nubian community is in the committee

The GoK counsel states "then the exercise is conducted with the participation of the Nubian community"

The witness disagrees

The counsel then asks, but there is a representative? Yes

GoK counsel asks "have you ever been vetted by an identification committee?"

Witness states "for an ID no, but for a passport yes"

Counsel asks "Have you ever participated as a member of a vetting committee?"

Witness states no

"In your experience did you register for a #HudumaNamba?"

Witness states no

"So you have no experience with how data was collected?"

Witness again states no
Counsel for GoK refers to the 3 perspectives of the witness - before, during, and after #HudumaNamba registration - and asks witness what if he has familiarized himself to government justifications for use of the data

Witness wants to give input on the data bill

On procurement -

"Where did NRF look for information on procurement?" since it has "not seen info" according to affidavit

Witness states "at the government domain"

GoK counsel asks if that is stated in the affidavit, witness says no

Counsel for respondent NRB asks witness to read part of his statement re: #Aadhaar

Witness states what he knows is "through my board members" & via media

Counsel for respondent states "so you wanted the govt to compare to a system unknown to you"

GoK counsel asks witness to read a paragraph from a respondent's replying affidavit statement where countries GoK visited for benchmarking were listed - India was not among them

GoK asks witness Mr. Shafi about a letter to NRB that the witness refers to in his statement - the witness says he has not attached it but that he knows it is attached to an affidavit of one respondent

Witness asked and confirms the letter is from him to the NRB

The witness is asked to state the subject of the letter as written - "appreciation letter"

Witness has been requested to read the letter - witness reads the thank you for the cooperation in a "mobile registration campaign"

GoK sets out that this letter sets out the "real feeling" of NRF in regards to the National Registration Bureau

Witness states "no"

Counsel indicates cross-examination is over - counsel @yussufugas will now re-examine Mr. Shafi Ali Hussein

Witness is asked why he wrote he letter

He says "I wrote that letter like any Kenyan that can appreciate any good deed

I appreciate because we have a problem between civil society & government"

Witness continues:

Often you call the govt and they don't come - like asking them to come issue IDs and birth certificates

Let me be clear this is not the role of NRF but the role of the govt, and we are willing to cooperate for better services

Counsel asks "The letter is about mobile ID - what does that mean?"

Witness: Mobile ID is a process is asking the registrar to come out to the grassroots and you mobilize citizens (in this case, in Kibera) and do legal empowerment

Counsel: What is #legalempowerment?

Witness: Helping people to understand their citizenship rights, to understand why they must get a birth certificate, ID, death certificate

Counsel asks about the experience of the witness with passport vetting

Witness replies: "Why are you only vetting a specific set of people in this great nation and not vetting everybody?"

Counsel asks witness his grievance with the ID system

"My respected govt cannot vet a specific community and leave the rest of the Kenyans

It is a constitutional right that govt should do everything equitable - Art 27 says everyone has equality before the law"

"My problem with #NIIMS is my community will be left out and not only Nubians but many minorities - we want to migrate together. The issues of discrimination should be addressed so that we can walk together - otherwise how can I be denied services?"

What was your concern before #HudumaNamba registration began:

-no adequate public participation

-3/4 people didn't have adequate information on #HudumaNamba

-system rolled out before law to guide it
What was your concern during #HudumaNamba registration?

-People without documents were turned away - could be locked out

-I have a list of people here who have been struggling to get IDs

If this can be sorted and we all move together, I would have no issue with #HudumaNamba
Witness continues that many Nubian youth lack education because they don't have an ID due to the vetting process

The witness is asked by counsel for his recommendation on NIIMS

Mr. Shafi states "Government should apply the law equally to every person"

Re-examination of witness Mr. Shafi Ali Hussein has ended

The third witness from the Nubian community, Fatuma Abdulrahman, is now on the stand being introduced by counsel for the petitioners

She does small business and is an official at NRF

Cross-examination of witness Ms. Fatuma Abdulrahman by counsel for respondent NRB has started

Counsel for NRB asks witness "why is this case in court?"

The witness replies:

This issue is particularly challenging registration for #HudumaNamba especially in issuance of IDs to the Nubian community

The witness did not register for #HudumaNamba
Counsel for NRB refers to history of Nubians' access to documentation as in her affidavit

Witness reads "Nubians can only apply for IDs on Tuesdays and Thursdays because that is when elders sit"

Witness asked & confirms that 1st stage of vetting is by elders

Counsel asks: do Nubians have challenges with documents other than IDs?

Witness says: We do

Counsel asks: Do you understand which documents you can use to register for #HudumaNamba?

Witness replies "passport, ID, birth certificate"
Counsel: Did registration take place for a season or is it ongoing?

Witness: according to the court's orders the process should be continuous

Cross-examination has concluded and re-examination of witness Ms. Fatuma Abdulrahman by counsel @yussufugas has commenced

The witness speaks to previous experience dealing with difficulties getting documents

"Nubians have previously gone to court around discrimination in access to documents and they had to go to the African regional level because nothing was done" says witness

Witness Ms. Fatuma goes on to explain the two regional cases - one with the African Commission and one with the African Committee of Experts on the Rights and Welfare of the Child, both of which found Kenya in violation due to the discriminatory vetting process

The witness states she had followed the cases as a Nubian and she participated in a meeting of the African Committee of Experts in Lesotho

In response to a question on vetting:

The witness states she observed the vetting of her daughter and the questions asked were related to security and not IDs

Counsel for respondent objects - counsel for petitioners states witness was asked about vetting and he wants court to understand the vetting process

Questions go back to #HudumaNamba and the docs needed to register

Witness: "If we have difficulties to obtain an ID or passport, how can I register? And looking at the amount of time it takes to get an ID

Even if registration will be continuous, how much time will it take?"
"Why can't we solve the issue of giving an ID to Nubians

Why can't we be equal to the rest?" exclaims the witness

#HudumaNamba #NIIMS
Counsel for petitioners has no further questions for the witness - re-examination has concluded

The petitioners have concluded their case

Respondents can avail two witnesses in the afternoon Mr Omwenga and Mr Muchemi; the two PSs are still unavailable

The court will break for lunch, proceedings to resume at 2:30pm

We are in court waiting for #HudumaNamba proceedings to continue
Proceedings have re-started for the #HudumaNamba case
The judges will start with the ruling that they reserved for today, to be delivered by the Hon. Justice Korir

Justice Korir: prior to the commencement of the hearings on Sept 23 the respondents noted three of their witnesses were unavailable and thus they requested new dates

Petitioners said the petition was urgent and a witness had come from India to be present

Justice Korir: court must be guided by the Constitution

Although court did not specify dates and times for each witness, it was envisaged they would be available

Court is finding in the respondents’ favor, but this is last opportunity to avail the witnesses

New hearing dates on October 2 & 3 for that purpose

Court will now proceed with respondents’ opening statement

Opening statement by counsel Mr. Rugeru:

#NIIMS is “nothing complex” and would hold data the government has already been collecting for 100 years

Government proposes to consolidate that information and store it digitally for ease of retrieval and use

Digitization is “the way to go”

Kenya cannot be expected to be held back as the rest of the world makes strides in technological advances

#NIIMS has come at the right time and would be of immense benefit to citizens of the country & foreigners who register

Counsel points to a listing in an affidavit of benefits of #NIIMS, including:

#NIIMS is going to bring everyone together”

-Security, inc minimizing terrorism

-Detection of crime - murders, rapes, robbery, a “useful tool in the enforcement of law”

-Revenue collection
Should challenges of data protection, privacy, etc hold us back?

Answer of respondents is a “firm no”

Counsel says bench will hear about the locally developed software and that it has all necessary aspects to meet and mitigate these challenges

Counsel refers to Petition #56 filed by Nubians and says complaint “amounts to a complaint about acquiring national identity cards under the Registration of Persons Act, which came before Dec 2018 when the amendments passed”

“These grievances are wholly irrelevant to the constitutional issues in which the court must decide”

Do not take discrimation lightly but will show in evidence the giver ember does not discriminate against any segment of the population

Govt does not want to exclude but must also show aliens and foreigners are not registered as Kenyans

Evidence will be brought about vetting and that community elders are the “first point of call”

#NIIMS has received overwhelming public supoort

The #NIIMS Adminstrator will be here as directed by the court and will share that 38 million people “voted with their fingerprints” by registering for #HudumaNamba

Data Protection Bill & #HudumaBill2019 shared with court

“But introduction of these bills does not in any way suggest the current law is deficient” but to “reinforce what is already an existing & robust legal framework to protect privacy, data, and so on”
Not the role of the court to take on legislative function

Not the role of the court to substitute its views with that if the legislature

Courts have said in other cases Parliament in its wisdom has enacted this law

Respondents submit that petitions should be dismissed & burden of proof has not been discharged

“Let Kenyans step into the future and embrace technology like the rest of the world”

No perfect system, but proper safeguards in place for #NIIMS to serve the country

Opening statement of the respondents is now complete

First witness for the respondents is Mr. Brian Omwenga

He is being introduced and adopting his affidavit as evidence before cross-examination by the petitioners will begin

Mr. Omwenga is explaining his educational and professional background, including that he has a Master’s from MIT where he focused on design of large-scale systems

Mr. Omwenga has done consultancies for the Government of Kenya

Counsel @MarthaKarua raises an objection whether the GoK counsel is leading the witness in chief, contrary to instructions of the court

Counsel for GoK says he is introducing the witness

Court agrees introduction acceptable for expert witnesses

Mr. Omwenga has advised on the #NIIMS project

He has adopted his affidavit and cross-examination will now begin, led first by counsel for petitioners @yussufugas

Counsel Bashir’s first question:

“Does the first actual mention of #NIIMS occur in paragraph 21?”

Witness confirms

Counsel Bashir: “And you start that paragraph with ‘To the best of my knowledge’?”

Witness confirms

Witness has been working for 14 years in his field

Counsel for petitioners asks “How many contracts have you done for GoK?”


“Do you have a contract with the government currently?”

Witness says he has fulfilled contract, then says no current contract

Witness asked if he has testified in court for the government before

Witness says “not for govt”

For who?

Political party - Jubilee

Which case?

Presidential petition - both cases

Witness was contracted to advise Jubilee - “extending to role” in court

“So you have been paid before to testify as an expert?” asks counsel Bashir

Witness states “I’ve been paid for advice”

Counsel Bashir: Have you provided evidence on the technical aspects of #NIiMS in your affidavit?

Witness: No I haven’t

Bashir: No current contract with govt, so no involvement in #NIIMS?

Witness: “if they ask me a question I answer”

Bashir: Who

Witness: PS ICT

Bashir: So you have an ongoing relationship with the 5th respondent in this case?

Witness: My documents are in their possession, my architecture is in their possession

Witness has consultancy firms

One firm has contract with GoK - National Library

300,000 shillings a year, renewable
Non of the papers submitted in Mr Monga has been submitted in his affidavit
The responded is not aware that NIIMS was brought up by registration act
The respondent agrees that NIIMS will be the single source of truth based on Dr.Kibocho’s affidavit
The respondents statement is that NIIMS is partly centralized and decentralized
Dr. Kibicho’s affidavit states that NIIMS is a centralized source of information.
The respondent is not involved in the technical building of NIIMS
If an ID card was issued with a chip,the system will be decentralized on NIIMS
The respondent doesn’t know any huduma Namba has an issue
The respondent doesn’t know where the data collected in the previous mass registration of NIIMS is.
You’ll need algorithms to do duplications based on the respondents answered on duplications
There are known companies for proving big data for algorithms
The respondent provided advice to IEBC on the election court case in 2017
IDEMIA is alleged to be at the forefront of providing services on NIIMS
The witness provided advice in the previous election case of 2017

And is also providing testimony to NIIMS case which are both alleged to have been contracted by OT morpho
In the witness affidavit he talked about systems that are diterministic and probabilistic
The witness responds to bashir’s question that the biometric systems are probabilistic
What we need is a system that is deterministic and not probabilistic
You need multiple sources of data of a person to determine the diterministic part and accuracy
The more data you get form an individual the more accurate information you get including DNA
The NIIMS project is designed in a way of collecting more data from people as a single source of truth
Witness says there ni certainty that fingerprints will identify you completely

You’ll require more data to be able to reach out of the threshold of identity
It it the setting of the threshold that determines who a person is based on the percentage-setting

Which could be probabilistic
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