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"justice should not be delayed" "the purposes of this constitution should be protected." Court gave respondents directions as to the hearing. They expected respondents to issue their witnesses.
"given the imperatives of substantive justice.. we have decided to exercise our discretion in respondents' favor" This would be the last opportunity for the respondents. The 2nd of 3rd of October is set to receive the remaining witnesses.
If they do not show up, the court will make an adverse inference.
The respondents are giving an opening statement: says they will begin by "demystifying" the NIIMS. They say the NIIMS is nothing new, it is giving the information that the government already has.
"All that the government wants to do is consolidate the information." "Digitization of government records is the way to go, not just in Kenya but globally." "that trend is indeed irreversible, nobody wants to go to the paper age, and Kenya cannot be expected to be held back."
Implementation of NIIMS will be of immense benefits for the population
Refers to para 43 of Kibicho replying affidavit as describing some of the benefits of NIIMS.
respondents list the benefits including detection of crime, security enhancement...
Government is not implementing NIIMS for the sake of it, it is a deliberate and planned effort to deliver services
Says they will be challenges that comes with the territory... mentions children's rights, data protection, cyber security "and so on". Says they will take the necessary mitigating measures.
says the court will hear their experts. They will show that the case of the Nubians amounts about a complaint about acquiring national ID cards under the registration of persons act, a situation that was prior to December 2018 when the impugned amendment to the act was passed.
says they do not disregard the serious allegation of discrimination, "it is an emotive issue, but we will demonstrate that no evidence has been used to support this alleged discrimination"
Denies discriminating against any section of the population.
Says it is a catch 22: "on the one hand, government does not want to exclude any deserving registrant, on the other hand, government has a responsibility to ensure that aliens and foreigners who are not Kenyans do not register as Kenyans."
says they will show that NIIMS passes all the constitutional tests with "flying colors". Says that over 38 million Kenyans registered already for NIIMS.
says that the petitioners previously supported NIIMS.
says NIIMS is not unsafe either for an architectural or a legal perspective
mentions the Huduma bill and the data protection bill. "the formulation of these new laws does not in any way suggests that the current laws are deficient."
"these new acts are merely coming to reinforce what is already existing"
says to the court that the role of the court does not extend beyond analysis of whether NIIMS breaches the constitution, court cannot weigh whether a statute is sufficient. This is a legislative function.
It is not within the powers of this court to create a policy to replace a policy that has already been developed by the government
this petition should be dismissed if the constitution has not been violated. "Let Kenyans step into the future"
There is no perfect system, but sufficient safeguards have been developed.
Respondents have finished their opening statement.
Government's witness Brian Gichana Omwenga takes the stand.
he is an expert witness for the ministry of ICT.
he is telling his court his qualifications
Profession engagements: "I define myself as a software and systems engineer, I am also a researcher and academic". he also teaches design and analysis of algorithm.
gives IT consultancies, including to the government. 2nd petitioner's counsel objected to the respondent's counsel leading the witness. Court says it is ok because he is an expert.
says he has chaired the technical committee on CEMS on setting software standards for the country
1st petitioner's counsel @yussufugas is about to cross-examine the witness. #hudumanamba
"Are you here for the public interest?" Indeed
Your are here today as an expert testifying for the government? yes
You do quite a number of consultancies regularly? yes
How many consultancies have you done for the government in the last 14 years? about 4 in individual capacity and through university.
Do you currently have a contract with the government? right now I don't.
I had a contract as a action research project that result in an enterprise architecture of the government in 2016-2017
Have you been paid by the government for it? yes
As an expert, have you testified for the government before the NIIMS? for the government no, has done it for political parties (the Jubilee party)
Was this affidavits or testifying? It was affidavit.
Are you paid for your advisory services to the Jubilee party for the advices that you provided as an expert, extending to the election petition? yes I have. So you have been paid before to testify as an expert? I have been paid for advice.
You have not tender any evidence of any technical part of the NIIMS in your affidavit, have you? No I haven't
You said you are not currently paid for the government? are not currently involved in NIIMS, in the technological aspect of it? If they ask me a question, I answer.
Who asks you for advises? the principal secretary of ICT, Jerome Ochieng. Your architecture is his position, so despite of the fact that they do not pay you directly, if they ask you a question, you answer? yes
The 5th respondent (ICT) requested you to testify? they requested that I share my expertise.
Do you have a consultancy firm? I have two netpoints and the think tank tech innovators networks for Kenya. Confirms that gives consultancies as tech innovators networks or individually.
Admits that one of his company netpoint has a contract with the government. The contract is with the Kenyan national library 300 thousands sh a year. Says that currently he did not renew the contract and is waiting to see if they want renewal.
How many papers have you done that have been peer-reviewed? maybe about 6 papers. None of those papers are about NIIMS? you have not submitted any papers in your evidence about NIIMS? no I have not
So you currently not involved in building the technical aspect of NIIMS? No I am not
You heard what the expert for the petitioners said in court yesterday? yes
Are you aware that the NIIMS has been brought about by the Registration Persons Act? not aware of the legal side.
The principal secretary of Interior is the administrator of NIIMS? doesn't know.
Have you seen the affidavit by Kibicho? has seen it
reads some part of Kibicho's affidavit where Kibicho says he has the responsibility of administrating the NIIMS. Also reads part of the affidavit stating that the purpose of NIIMS is to create and manage a central master population database which would be single source of truth
Do you agree with that statement? Yes
Yussuf now refers to Brian's own affidavit: "to the best of my knowledge NIIMS is neither entirely centralized nor entirely decentralized" correct? yes
Kibicho is the administrator of NIIMS, you are not involved in NIIMS, he says it is a central population registry, you say it is neither centralized nor decentralized. Do we go with you or him?
He is the administrator but did not necessarily built the system. So he is wrong? Respondent's counsel objects.
Martha says Yussuf asks a specific question, and that witness wants to generalize.
You are not the administrator of NIIMS? No You are not involved in the technical building of NIIMS? in the current building no
The principal ministry of Interior is the administrator? yes. Kibicho refers it as centralized? yes, you refer in your affidavit as neither centralized nor decentralized? yes
you work in multinational corporations, and you listed them in your affidavits, including Microsoft, Nokia... ? yes so you know the difference between centralized or decentralized? yes
refers to the affidavit of witness where he describes the centralization and decentralization of NIIMS. If an individual is issued with card containing biometrics and this card would have something similar to chip correct? yes
Does having that chip, that card with a chip will have pin authentication, would that system by decentralized or centralized? I would call it decentralized.
explains what makes this decentralized? the court intervenes and asks witness why he is calling a card with biometric info a decentralized system
Witness says that the card is given to the individual, and when it is given to the individual it contains your identity
yussuf gives example of the bank card, and asks if this is decentralized? He says that not necessarily because it will contains just the pin not identification
There would be a centralized master register, and the system would be you would come put your fingerprints and you go from there? not necessarily, it is multimodal system
you would have to go to the center, use your fingerprints and that's how they identify you, that is centralization, correct? [no answer] Witness says he just give advises and whether the client takes it or not it;s on the client
Was any huduma number provided since the process started, do you know? I don;t know
You don;t know what is happening currently with the NIIMS? in the current instance I don't know but I could infer that they are cleaning up the data.
One of the thing that the cleaning would include is deduplication? yes. And there was an issue with what that means correct? yes. What do you need to do to do deduplication? you basically need the database and a set of algorithms to help you clean the database
witness gives definition of algorithm.
Have you ever written any algorithms for the respondents? as a software engineer yes. What is an algorithm meant to do? this was for the library
You said algorithms could be done by any software engineer you , but to do the kind of algorithms that is massive, would be different and the capabilities that are required, would be different than what a average software engineer would do? Witness says there are indeed various
levels of complexities. Give analogy of a recipe and numbers of ingredients you need.
Are there companies that are known for providing algorithms for big data? yes
One of the big issue for the 2017 election petition for which you provided an affidavit, I presume the evidence you provided related to the system and how the system worked, right? yes
a system that was procured by the IEBC? yes, do you know what company did the procurement for the system? I was testifying the what was done by IECB
What was the name of the company, you do know don't you? Safran Morpho
Is Safran OT Morpho well known? in Kenya, yes
they provided a system, yes? what kind of system did they provide? A system with a series of parts... what was the system was supposed to do? verify voters. You mean identify voters right? yes
I testify based on my involvement. But you were not involved in the building of it? No
More discussion about witness’s previous testimony at the Supreme Court.
It is interesting that it is the same company that is at both election petitions and 2017 elections. Witness says OT Morpho did not do anything and that is complex.
Court intervene and ask counsel where he is going with his questioning. Respondent says that he is going outside the frame of the hearing and that it is not relevant.
Counsel for petitioner Martha says that respondents went outside the hearing yesterday and that her colleague is laying groundwork to explain background of witness
Yussuf agrees to move on. Questions respondent on his affidavit where he says that government has “unfettered discretion” in the choice of their population register
Asks witness to read article 86 of the GDPR he referred to to justify his statement about “unfettered discretion.” Do you see that reference in article 86? Witness says no. Counsel says it is about data protection
Does the constitution provide government unfettered discretion to the government? Witness says that discretion is about the design of the system
As an IT person, does Kenya have a specialised data protection act? As a single act no but there are different articles that protect data
Do you know of any data protection policy? It is standard policy for organisations to have one. Says the government is made of organizations
Reads part of the affidavit where he is talking about dual use technology. Why would there be a need to guard collection of data beyond intended purpose? There are probably laws around that
Witness says clear understanding of the context is needed and need to choose systems for fitness of purpose
Discuss data minimisation. Witness says needs to be applied but not in isolation but in context of the fitness of the purpose
Witness says it is not necessarily about counting the data but about the quality of that data.
Discuss deterministic vs. Probabilistic. Witness replies that biometrics systems are currently probabilistic
Biographical info by itself is probabilistic? Yes so what we need is a system that is deterministic you said? Yes
Witness confirms that you need multiple layers to make the system more accurate
The more data you have on individuals the more accurate is the system? Yes
Including DNA? Yes
Is the allegation of the petitioners that this system is designed to collect more and more data that risk their privacy, do you agree? Not necessarily there are ways to solve that problem
Discuss the concept of thresholds.
Witness says there is no certainty fingerprints will identify you but “it is more probable than not”
Witness confirms that if the setting of the threshold for identification is too high it will exclude people, if too low it will let people enrol more than once (duplication)
Counsel refers to the probability of fingerprints and another parameter to identify an individual. Witness is asked “could you explain to me how 70% plus 70% divided by two equals 100%?” Witness replies that it doesn’t
Are you saying private information related to a high value target like a principal secretary would have no commercial value? He says it depends on the information leaked
Discuss what constitutes personal information
Discuss Aadhaar 500 rupees leak incident
You have not provided any document on the architecture on NIIMS have you? No. No information about how deduplication will work have you? No you have not provided any information about how the huduma namba numbers will be issued have you? No
Discuss purpose of #NIIMS witness says it is about identifying people accurately for service provisions. The current system is not as accurate as it could be, it is an improvement? I would say a little yes
The court intervene and says that we will adjourn for today. We will be back tomorrow morning 10am for #NIIMS hearing #hudumanamba
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