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In court for day 5 of #HudumaNamba & #NIIMS hearings

Today we are expecting cross-examination of govt witnesses, including the PS Interior and PS ICT

Follow us for live updates
The court room is packed while we wait for the #HudumaNamba proceedings to begin
Use #HudumaNamba and follow @NubianRights @Haki_na_Sheria & @thekhrc for updates on the proceedings throughout today and tomorrow
PS Interior Dr. Karanja Kibicho is now seated in the court room

Waiting for the judges for proceedings to begin

#HudumaNamba #NIIMS
Judges have entered, proceedings are beginning #HudumaNamba
Today the court will proceed with the cross-examination of the government witnesses

The respondents’ counsel would like to start with PS Interior Kibicho, as he will travel tonight #HudumaNamba
The GoK respondents will then avail PS ICT Jerome Ochieng and then their third witness

PS Interior Kibicho is now on the stand and sworn in as a witness

The counsel for the respondents is introducing the PS Interior as a witness #HudumaNamba
Counsel asks if the witness can confirm that under the amended Registration of Persons Act, the law being challenged in this case, that he is the administrator of #NIIMS

The PS Interior confirms he is the #NIIMS administrator

The PS Interior adopts his 4 sworn affidavits as evidence before the court

Cross-examination of PS Interior Karanja Kibicho will now begin, led by counsel for the 2nd petitioners @MarthaKarua

Other counsel for the petitioners @yussufugas & others may add questions

#HudumaNamba #NIIMS
@MarthaKarua @yussufugas Counsel @marthakarua begins by asking the PS Interior if, as stated in his affidavit, he is familiar with the Constitution – in particular Article 1 which states sovereign power belongs to the people

The PS confirms he is familiar

@MarthaKarua @yussufugas Counsel @MarthaKarua asks the PS if the power held by the three arms of government is given by the people, the people "own" the government

The PS Interior affirms

Counsel asks - and what govt does is for the people?

The PS Interior affirms

@MarthaKarua @yussufugas Counsel refers to Article 10 on public participation – and asks if the govt is obliged to facilitate public participation in govt processes?

The PS Interior indicates this is correct

@MarthaKarua @yussufugas Counsel: in order for the public to participate in a meaningful way, it is the responsibility of the govt to avail adequate information

PS shares that view, with a "rider that it's still subjective what adequate means and the mode of the public participation"
@MarthaKarua @yussufugas Counsel @MarthaKarua: What is the minimum information required for someone to register?

PS Interior “in the form…it had a number of sections” – bio data - name, gender, etc.

@MarthaKarua @yussufugas PS Interior: The form was both physical and digital – bio data (name, gender, place of birth, disability), citzen or non-citizen, if one is a citizen above 18 we require them to produce an ID, birth certificate, if they have an NHIF, DL, NSSF, passport

@MarthaKarua @yussufugas Counsel: You confirm for citizens, all these cards had to be produced?

PS Interior: that's not correct – for citizens above 18, the mandatory document they had to produce was an ID

We're aware not all people above 18 have NSSF, DL – so mandatory for over 18 is ID

@MarthaKarua @yussufugas For under 18, mandatory document was a birth certificate

@MarthaKarua @yussufugas Counsel asks PS Interior to read the statement at the bottom of the form

The PS reads: #HudumaNamba registration is mandatory as per Sec. 9A of the Registration of Persons Act…”
@MarthaKarua @yussufugas The PS clarifies the form was printed before the Interim Ruling of the courts, so subsequent forms had this statement removed

Counsel @MarthaKarua states the form on the online website remained this way for some time

The PS disagrees

@MarthaKarua @yussufugas The PS goes on to explain the content on the back of the form, including address information, employment, agricultural activities, and the signature of the person or their parent/guardian

@MarthaKarua @yussufugas Counsel asks: would you agree with me on the form itself, it does not specify what is mandatory and what is not?

PS affirms

@MarthaKarua @yussufugas Counsel: do you agree the physical address and agricultural activities are not necessary for identification?

PS Interior: purpose is personal identification, but at the time a number of govt ministries had asked for budgetary support for registration of farmers, industry, health
@MarthaKarua @yussufugas PS Interior: as a govt, we said we will fatigue Kenyans if we go to ask for the same information – multi-agency committee was formed to develop questions

@MarthaKarua @yussufugas PS Interior: “All this info doesn’t apply to everyone – only mandatory thing we required was an ID for those over 18 and a birth certificate for those under 18”

#HudumaNamba #NIIMS
@MarthaKarua @yussufugas Counsel: So the data capture form captures more than is needed for personal identity?

PS Interior: Yes – with reasons

@MarthaKarua @yussufugas Counsel: A person without an identity card or a child without a birth certificate could not register?

PS Interior: “That is correct – anyone who came without any form of identification would not be registered”

@MarthaKarua @yussufugas Counsel: Why ask people for what you already hold? Digitize from your offices

PS: ID is with govt in National Registration Bureau – across, info with institutions

We know our pop. register got outdated over time – you will find two people with IDs that have the same number
@MarthaKarua @yussufugas PS Interior: people hold a Kenyan passport that is not genuine... want to match the information to the person

@MarthaKarua @yussufugas Counsel: So you agree some of the information – like on agriculture –is new?

PS Interior: no, the information is with the Ministry of Agriculture but it is not matched to the person; how many people have 5 acres of land

@MarthaKarua @yussufugas Counsel: available in the lands office, but not available in a central point within the govt? the collection of this info is new so long as it is aggregated

PS Interior: info on agriculture on land – who owns what land, but that this person whose biometrics are taken and a photo
@MarthaKarua @yussufugas "…. Govt has never had this info in this format"

@MarthaKarua @yussufugas Counsel: Govt has said 38 million people were registered

PS Interior: At close of first phase of mass registration, 38 million or thereabout

Counsel: How many were minors?

@MarthaKarua @yussufugas PS Interior: Re: court order, we could only do data capture – haven’t actually analyzed or aggregated how many adults, children

Counsel: You went into schools?

PS: I will not confirm that; schools were venues of registration, but children must be accompanied by parent/guardian
@MarthaKarua @yussufugas Counsel: In boarding secondary schools, would those children be accompanied?

PS Interior: If you want me to table a list of where we went, that I would do

@MarthaKarua @yussufugas Counsel @marthakarua questioning PS Interior whether govt officials, including him, made statements that registration for #HudumaNamba was mandatory

PS Interior states he never went out to say it was mandatory – only that he told people of the benefits of a digital register
@MarthaKarua @yussufugas PS is asked if he knows when the case is filed – he knows it was 2019, and they started preparations in February 2018

Counsel: if at all you started Feb 2018, it was internal – for public it was Feb 2019, after the case was filed

@MarthaKarua @yussufugas PS tries to explain on public participation

Counsel @marthakarua asks him – you went flat out to the public in Feb 2019 after this case was filed?

PS will avail a schedule

@MarthaKarua @yussufugas Counsel: To limit fundamental freedoms – you must show it’s necessary and have a law showing the limits, like if you want to collect DNA

PS Interior: That is correct - but never intend to collect DNA

@MarthaKarua @yussufugas Counsel: In phase one

PS Interior: Even in phase ten

@MarthaKarua @yussufugas Counsel: Why is provision of DNA in the amendments?

PS Interior: Must go to what we wanted to achieve – digital population register, unique # for each person – not all can avail all biometrics like fingerprints, earlobes – so used this “dictionary definition”

@MarthaKarua @yussufugas PS Interior: Now & in future – only interested in photo and fingerprints, but in case someone doesn’t have – we didn’t have ability to take iris, just record they had no fingerprints

@MarthaKarua @yussufugas Counsel: it leaves the opportunity, should you require, to go beyond what is being collected now? It would be completely lawful to collect all the other biometrics?

@MarthaKarua @yussufugas PS Interior: I think…

Counsel: It’s yes or no

PS Interior: It’s a no for us

Counsel: So you are telling the court you don’t agree the law permits you to collect these things, even if you have no intention

PS: If we go by definition of biometrics, it does

@MarthaKarua @yussufugas Counsel: Are you aware all 3 petitioners are not against digitization, but they have concerns about HOW it is being done

PS Interior: My view is that they are (against)

#HudumaNamba #NIIMS
@MarthaKarua @yussufugas Counsel asks PS to read from affidavit of George Kegoro @thekhrc

Counsel: petitioner here is saying – we are not opposed, but have concerns that need to be address

PS Interior: I still hold the other position

@MarthaKarua @yussufugas @thekhrc Counsel: Does this challenge fall within Article 10 on public participation?

PS Interior: It does

@MarthaKarua @yussufugas @thekhrc Counsel: I assume you understand concerns of the petitioners… Now that the suit was filed, did you – working for the public – reach out to see how you could better understand concerns & how you could respond?

PS Interior: We engaged hundreds of people, inc. Parliament, churches
@MarthaKarua @yussufugas @thekhrc Counsel: So the answer is no – you did not reach out

PS Interior: No, and they could have asked those questions when we gave opportunity

@MarthaKarua @yussufugas @thekhrc Counsel: If petitioners are concerned about data security, and you don’t reach out, that is lack of transparency?

PS Interior: We remained open and responded to inquiries from hundreds – these didn’t come to us, we can’t know if someone has a concern until they come to us
@MarthaKarua @yussufugas @thekhrc Counsel: After they went to court – did it occur to you that you could reach out with information?

PS Interior: I’m not very conversant with procedures of court, my understand was once it’s in court, we allow court process to proceed

@MarthaKarua @yussufugas @thekhrc Counsel refers to Data Protection Policy – data minimization – doesn’t that mean collecting the least information necessary?

PS Interior: This policy is not tailored for #NIIMS

Counsel: But it is for all govt data

PS Interior: This policy covers all kinds of data

@MarthaKarua @yussufugas @thekhrc Counsel: Does this cover NIIMS?

PS Interior: NIIMS has data…

Counsel: All data in govt, inc NIIMS, should be minimized and have Data Controller

PS Interior: That is correct

@MarthaKarua @yussufugas @thekhrc Counsel: Must be able to demonstrate principles of Data Protection

PS Interior: Yes

Counsel: Do we have a data controller for #NIIMS?

PS Interior: Legal framework – using the Registration of Persons Act, which allows PS resp. for Reg of Persons to collect data

@MarthaKarua @yussufugas @thekhrc PS Interior: I am the administrator, I have people who work under me

Counsel: I’m asking because policy says if you have a complaint, you go to Data Controller – if you can’t answer, how can data subject be able to get redress?

#HudumaNamba #NIIMS
@MarthaKarua @yussufugas @thekhrc PS Interior: Person responsible for day to day management of the data is Director, National Registration Bureau – he exists

#HudumaNamba #NIIMS
@MarthaKarua @yussufugas @thekhrc Counsel: Have you established a Data Protection Commissioner in govt or for #NIIMS specifically?

PS Interior: Want to leave policy because it proceeded the law – Data Protection Bill in Parliament

Counsel: Tabled when?

PS Interior: Don’t have dates…. Started 2016…
@MarthaKarua @yussufugas @thekhrc Counsel: But it was tabled after this case, recently? Policy proposes a comprehensive law

PS Interior: We are aware the bill is not yet law - and I don't think this bill is brought into being because of lack of laws to safeguard data in government

@MarthaKarua @yussufugas @thekhrc PS Interior: Each institution that collects data from public have a provision – but there are so many of them – so intent of the bill is to consolidate provisions on #dataprotection

@MarthaKarua @yussufugas @thekhrc Counsel: Remember our start – you have the data, you’ve had it for 100 years, but you are bringing it together in #HudumaBill2019, so also bringing together data protections?

PS: Bringing Huduma Bill b/c personal information as it exists now starts at birth

@MarthaKarua @yussufugas @thekhrc Counsel: You put the cart before the horse – you should have started with the law

PS: I don’t agree

Counsel: So law is redundant because you already have such laws?

PS: It’s to consolidate

@MarthaKarua @yussufugas @thekhrc Counsel: Name Data Commissioner/Controller

PS: for #HudumaNamba the Data Commissioner is Director NRB

Counsel: where is it written? So you are telling me there is no one designated?

PS Interior: Let me get the Reg of Persons Act
@MarthaKarua @yussufugas @thekhrc PS Interior: Section 4 – Principal Registrar, we call that person the Director – to keep register of all persons in Kenya to who this act applies

Counsel: show me where it says the Principal Registrar will manage and protect data

@MarthaKarua @yussufugas @thekhrc PS Interior: Section 14 says there is a penalty if Principal Registrar misuses data

Counsel: Is there a section that says how a person can complain if data captured wrongly or data violated?

PS Interior: ...many options...

Counsel: Only the Registrar

PS: and Staff
@MarthaKarua @yussufugas @thekhrc Counsel: Reg of Persons Act has no section designating Data Commissioner or Controller -it's you giving designation, not the Act

PS Interior: It's the Principal Registrar

Counsel: Nothing about data control in the Act

PS: That's true

@MarthaKarua @yussufugas @thekhrc Counsel refers again to George Kegoro's affidavit re: collection of data of children b/c Act applies to citizens over 18

Counsel: Do you agree with Kegoro that it's the position of the law

@MarthaKarua @yussufugas @thekhrc PS Interior: I don't agree b/c registration we carried out was under Section 9A that est. NIIMS as a national pop register of all citizens & foreigners - it's that "ALL"

Counsel: Act says itself over 18 - "all" cannot cover under 18 - no new definition added

@MarthaKarua @yussufugas @thekhrc PS Interior: I want to go to the Executive Order that was given

Counsel: I hope you are aware an Executive Order cannot supersede the law

@MarthaKarua @yussufugas @thekhrc PS Interior: Interpret "all" as everyone - "in performance of functions, inter-ministerial committee shall... #4 be guided by Reg of Persons Act, Births & Deaths Reg Act, Basic Edu Act, Kenya Citizenship & Immi Act, & Refugees Act" - not reading it in isolation

@MarthaKarua @yussufugas @thekhrc Some discussion about whether the Executive Order is in the annexes - it is

@MarthaKarua @yussufugas @thekhrc Counsel: This gazette notice dealing with appointment of Inter-ministerial committee for #NIIMS – I put it to you that the gazette notice cannot amend the law

PS Interior: I leave that to legal argument – we do a lot of business via gazettes signed by the President
@MarthaKarua @yussufugas @thekhrc Counsel: Do you consider the amendments to the Registration of Persons Act minor or substantive? amendments?

PS Interior: Minor

@MarthaKarua @yussufugas @thekhrc Counsel: Even though it is introducing something new – centralized, digitized

PS Interior: Other than data on farmers and industry, rest of the data not new – just collating the data – did not constitute a major amendment

@MarthaKarua @yussufugas @thekhrc Apologies for the delay - Twitter seems to be malfunctioning!

We are back with #HudumaNamba case proceedings
@MarthaKarua @yussufugas @thekhrc Counsel: If digitized – available at a click

PS Interior: Correct

Counsel: Benefits and risk
@MarthaKarua @yussufugas @thekhrc Cross-examination now being handed over from @MarthaKarua to counsel @yussufugas of the petitioners

@MarthaKarua @yussufugas @thekhrc Counsel @yussufugas: You’ve read the concerns of the Nubians, the first petitioners?

PS Interior: I’ve been briefed

Counsel: But you are generally aware of their concerns?

PS Interior: Yes

@MarthaKarua @yussufugas @thekhrc Counsel: One of the main issues is that of vetting

PS Interior: I’m aware

Counsel: You’re aware of Article 27 of the constitution?

PS Interior: I would need to check

@MarthaKarua @yussufugas @thekhrc Counsel: On discrimination –every person is equal before the law and has rights to equal protection and benefit of the law – (continues reading about grounds protected, need for affirmative action for past discrimination)

@MarthaKarua @yussufugas @thekhrc Counsel: You are aware of vetting – certain communities vetted before issued with nationality documents, and you listed communities

PS Interior: As examples

Counsel: Nubians, Digos, Somalis…. Vetting is done on ethnic grounds, correct?

PS Interior: not correct

@MarthaKarua @yussufugas @thekhrc Counsel: But you have given communities

PS Interior: Examples… not exhaustive

Counsel: Criteria that is used is ethnic

PS Interior: Criteria is used when the registrar has doubt on the citizenship of a person – if a Kikuyu is in Turkana and registrar has doubts

@MarthaKarua @yussufugas @thekhrc Counsel: But you never mentioned Kikuyus – I’ll read for you “in this regard, border communities” and you use the word communities, meaning ethnic groups?

PS Interior: no

Counsel “refers to communities whose members are found within Kenya and outside Kenya”

@MarthaKarua @yussufugas @thekhrc PS Interior: Say that again?

Counsel: It’s your statement, I’m reading it for you – do you mind reading it?

PS Interior: I don’t want you to put words in my mouth

@MarthaKarua @yussufugas @thekhrc Counsel: You can read for me actually

PS Interior: Don’t want impression it’s ethnic – but mostly a community may be of one tribe

Counsel: We recognize each other based on ethnic background

@MarthaKarua @yussufugas @thekhrc Counsel: You are aware that the petitioners are saying vetting is a problem

PS Interior: I am aware they say that

Counsel: You are aware vetting causes delays in access to documents

PS Interior: I am aware they are saying that

@MarthaKarua @yussufugas @thekhrc Counsel: A petitioner even submitted in an affidavit the delays

PS Interior: I’m aware

Counsel: you've not produced any evidence that what they are saying is incorrect – that there are no delays in acquisition of documents, etc. – you have not responded in any of your documents
@MarthaKarua @yussufugas @thekhrc PS Interior: I need to check what I said around that – but the word delay when there is vetting

Counsel: Did you submit any report that says the # of days needed for Nubians to get docs

PS Interior: No

@MarthaKarua @yussufugas @thekhrc Counsel: you have not given any evidence about addressing historical discrimination of communities vetted for decades

PS Interior: I thought cross-examination is to answer that question

@MarthaKarua @yussufugas @thekhrc Counsel @yussufugas: You have not produced evidence of any steps taken, whether budgetary, legislative, to address historical discrimination – have you?

@MarthaKarua @yussufugas @thekhrc PS Interior: We have provided a lot of support to address historical injustices

Counsel: Did you include that in any document for the court?

PS Interior: We have a lot of activities that address that

Counsel: Do you have any document?

@MarthaKarua @yussufugas @thekhrc PS Interior: I will bring it

Counsel: But you have not provided it to the court?

PS Interior: Doing rapid registration of persons in the country – not because of court, just routine

@MarthaKarua @yussufugas @thekhrc Counsel: Let’s come to the #NIIMS system, which you are the administrator of – can’t be captured on #NIIMS without an ID if over 18

PS Interior: Anyone who is a citizen over 18 must have an ID

Counsel: And below 18?

PS Interior: Birth certificate

@MarthaKarua @yussufugas @thekhrc Counsel: You’re aware that you can be Kenyan but you don’t have documents?

PS Interior: There are Kenyans without documents

Counsel: So you agree these Kenyans could not be enrolled in #NIIMS

@MarthaKarua @yussufugas @thekhrc PS Interior: During the mass registration, w/out ID or birth certificate, we were not addressing them

Because we are aware some Kenyans lack docs, I want to correct #NIIMS is a life-long registration

@MarthaKarua @yussufugas @thekhrc PS Interior: We have gone flat-out to do rapid registration – currently it’s ending this Friday

Counsel: Presumably trying to address the gaps

PS Interior: We have always done that, even we go for mobile registration of people probably twice in a year

@MarthaKarua @yussufugas @thekhrc Counsel: The reason you are setting up #NIIMS is to provide Kenyans with a wide array of services?

PS Interior: We are setting up NIIMS first – as a digital population register, which then makes it efficient for identification of people at points of services

@MarthaKarua @yussufugas @thekhrc Counsel: It will be necessary to have identification to get service?

PS: Choice of convenience belongs to the Kenyan, whether you want convenience of service – if you go to hospital & discharged & NHIF has to pay for you, if your data is in one place, don’t have to walk around
@MarthaKarua @yussufugas @thekhrc PS Interior: but if you still want the long route, there is no Kenyan being forced to take that convenience

@MarthaKarua @yussufugas @thekhrc Counsel: To facilitate convenient access to services?

PS Interior: So you don’t have to walk a lot

Counsel: Those who don’t take it will be inconvenienced?

PS Interior: By choice

Counsel: Despite they don’t have access to documents – not by choice?

@MarthaKarua @yussufugas @thekhrc PS Interior: I doubt there is a country where you walk into the national registration bureau and say “I am a Kenyan” or “I belong to this country” and you go take a photo and be a citizen

That's why for an ID, primary source of identification is Asst. Chief

@MarthaKarua @yussufugas @thekhrc PS Interior: Asst. Chief has to say they know you, and put their thumbprint

If Assistant Chief says they don’t know you, law allows a committee

So if someone doesn’t have a document – the doors are open for documents and it doesn’t stop

@MarthaKarua @yussufugas @thekhrc Counsel: But as of now, an individual without a document and not on the system will be inconvenienced

PS Interior: They will walk a lot

Counsel: By choice?

PS Interior: By choice

@MarthaKarua @yussufugas @thekhrc Counsel: Not having documents is by choice?

PS Interior: Not having the documents is by choice – if avail themselves, starts with ACC and even one person is a community elder

@MarthaKarua @yussufugas @thekhrc Counsel: Maybe you can explain the steps

PS Interior: Let me get the actual list

Counsel: It’s not submitted as part of your evidence?

PS Interior: Part of my talking points

@MarthaKarua @yussufugas @thekhrc PS Interior: When a person avails themselves…. Not all Nubians don’t have IDs

Counsel: Let me re-phrase – can a Nubian acquire nationality documents without vetting?

PS Interior: A Nubian who is positively identified

@MarthaKarua @yussufugas @thekhrc Counsel: Can a Nubian acquire a document without vetting?

PS Interior: If positively identified by Assistant Chief

@MarthaKarua @yussufugas @thekhrc Counsel: I refer the court to the evidence of the Director of NRB who talks about “committees” – a committee isn’t one person, is it?

PS Interior: If registrar is not convinced & wants proof of citizenship, it’s in section 8 “power to demand information” – can appoint committees
@MarthaKarua @yussufugas @thekhrc The PS Interior continues:

Assistant County Commissioner is the chair, includes Civil Registration Officer, Immigration Officer (where applicable), National Police Service Officer, CID officer, NIS officer, Chief, Assistant Chiefs, Elders

#HudumaNamba #Vetting
@MarthaKarua @yussufugas @thekhrc Counsel: How many elders?

PS Interior: Depends on the area – at the discretion of the chairman, if community is homogeneous... then one

Counsel: One elder per community?

PS Interior: One per community

@MarthaKarua @yussufugas @thekhrc Counsel: Up to around 10 members – and 9 of the 10 are government, is that correct?

PS Interior: That’s correct

Counsel: One is an elder, so it’s a government-led exercise

PS Interior: Of course

@MarthaKarua @yussufugas @thekhrc Counsel: You’re aware of the African Committee of Experts on the Rights and Welfare of the Child?

PS Interior: Yes

@MarthaKarua @yussufugas @thekhrc Counsel: You’re aware and you’ve responded in your affidavit of the factual findings of the Nubian Minors’ decision?

PS Interior: I am

#HudumaNamba @acerwc @ACERWC_CSOForum
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Do you accept the findings of that Committee?

PS Interior: I would want to read it

Counsel: You know of it - you accept it or you don’t accept

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: I need to refresh

Counsel: So I presume it’s a no, you don’t know

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Hon. Judge asks: Have you annexed that decision?

Counsel: Yes, and I am basing it on the response that he gave

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Are you aware the committee stated “it is never in the best interest of the child to be stateless?”

Counsel for respondents objects – witness needs to see the decision

Counsel for petitioners will come back to that question

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: you are aware current databases for IDs and passports are “adulterated”?

PS Interior: Correct

Counsel: Trying to fix it since 1989?

PS Interior: Correct

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: One of the ways trying to fix it is through Integrated Population Registry System (IPRS)?

PS Interior: Yes

Counsel: Part of the thinking behind NIIMS?

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: IPRS tried to bring personal info into one basket but never intended to clean – only info on registration of persons, civil registration, & immigration – if someone goes for a passport, they produce a birth cert. & ID and IPRS would help check docs

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum The counsel then questions the PS Interior about how the data verification process will work for #NIIMS - including that the ID and birth certificate numbers would be checked

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: You’ve not submitted any evidence on how that process – of checking ID, birth certificate – would happen?

PS Interior: Court stopped us from going beyond data capture

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: But the procedure you will take – any evidence on that?

PS Interior: It was all ready before we collected data

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: I’m interested in the steps of processing the data and doing the cleaning – you knew them before you started the process?

PS Interior: We did, and we know

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Before even this case was filed, you knew these steps

PS Interior: Yes, we knew them

Counsel: You had them written down?

PS Interior: Data filtering – it’s a software

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: I’m interested in what you talked about – identified this individual’s birth certificate has an issue and you look at it

PS Interior: That’s the filter, the software I’m talking about – you start with a flow chart – which exists

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Where is the flow chart?

PS Interior: It wasn’t necessary…. because we had been stopped from further processes, but if court….

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel for petitioners @yussufugas: I’ll leave it at the fact – like my colleague @marthakarua asked you about transparency – that you did not provide the steps

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: So it’s possible someone going around believing they are a Kenyan could be deprived through this process?

PS Interior: Correct position is this – if Kenyan is holding a fraudulent document, the person may not be aware the document is fraudulent

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: For example, birth certificates – when they became required for school, parents were in a hurry and crooks in a hurry to issue documents to legitimate Kenyan children – might say the document is fraudulent, but doesn’t mean you are fraudulent yourself

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: Then we would go to the next step of issuing documentation

Counsel: But those steps, you have not submitted that, we are past that

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: someone who has a fraudulent ID – will you proceed to issue them with a #HudumaNamba?

PS Interior: Cannot issue them with a Huduma Namba, which is the last step after verification and the system has satisfied itself that this is that person

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: but the fact that it was rejected because ID mismatched doesn’t mean you wont’ get #HudumaNamba – it’s a life-long process (of registration)
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: It would take presumably… waiting for the ID process to end, applying again for Huduma Namba..

PS Interior: when you are holding a fraudulent ID

Counsel: without your knowledge

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: without your knowledge – because we have a responsibility to ensure only Kenyans get Kenyan documents

Counsel: Is there information on the percentage of fraudulent IDs that have been issued?

PS Interior: I would have to check

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Does it exist?

PS Interior: Can only guess

Counsel: Can you give an estimate?

PS Interior: I won’t give you a number, I haven’t interrogated it

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: So it could be that as a result of your data collection exercise, as high as…

PS Interior: If you require a number, I’m an engineer and numbers to me matter, but if it’s important that the number of our estimate be made available, we can

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: But you haven’t made it available now to this court?

PS Interior: I haven’t

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: PS Interior is Chair of technical committee on NIIMS – you?

PS Interior: Yes

Counsel: You are responsible for #NIIMS implementation, workplan, budget?

PS Interior: Yes

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Is it funded by taxpayers money?

PS Interior: 100% funded by taxpayers’ money

Counsel: How much has it cost so far?

PS Interior: 7 billion – by closure about 9.6 billion

#HudumaNamba #NIIMS
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: So it will cost another 2 billion for cleaning, etc.

PS Interior: Yes

Counsel: Will there be a cost of maintenance?

PS Interior: Yes

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: People who like numbers like cost/benefit analysis – and this is an important consideration?

PS Interior: Correct

Counsel: You’ve not submitted to this court – project will cost more than 9 billion - quantifying the benefits, have you stated the benefit in numbers?
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: We were responding strictly to the issues raised by petitioners

Counsel: They have challenged it – and you have not submitted these numbers weighing 9 billion here and whatever the amount is over here

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: If we had been asked

Counsel: But you didn’t submit it?

PS Interior: No, but we have them

Counsel: One of the experts, Brian Omwenga mentioned it, but he didn’t have the numbers

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: We weren’t asked

Counsel: Petitioners have challenged expenditure of taxpayers’ money – whether it’s the best use – we will leave it to the court to determine

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Going back to decision of African Committee – the question we had left – can you read the recommendations

PS Interior: (reads recommendations - available on page 16 here: citizenshiprightsafrica.org/wp-content/upl…)

#HudumaNamba @acerwc
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: You can see that they also mention budgetary allocations, etc.

PS Interior: Yes

Counsel: Have you submitted evidence on implementation of this decision?

PS Interior: It’s a 2011 decision, let me confirm

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Is there a specific budgetary allocation for implementing these recommendations?

PS Interior: There is budgetary allocation for #NIIMS

Counsel: For implementation of the decision of the African Committee

PS Interior: For circumstances like this

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: So broad, but not specific

PS Interior: I am the accounting officer and I know the budget that has been allocated – we just finished an exercise with Civil Registration Services – around 500 Million

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Our Constitution is very clear about specific affirmative action measures. Have you taken specific affirmative action measures to address challenges of communities like the Nubians?

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: We have – there has been a lot of interaction with us, they even had the chance to discuss with the CS Interior as you’ll see in our response. The impression being created that Nubians don’t get IDs are false

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Presumably you’re reacting to the decision of the African Committee? You’re saying the Committee’s conclusion and factual finding is false?

#HudumaNamba @acerwc @ACERWC_CSOForum
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: There is affirmative action in the Nubian community to ensure those who pass the vetting... a provision in law for those who want proof of citizenship and the registrar is in doubt – if you are a Kikuyu in Turkana and the registrar doubts – they'll form a committee
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: We already dealt with that

PS Interior: We have done “much more than the African Union wanted us to do”

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: you have not submitted any report on implementation to the African Committee – just like you have not submitted this information to this court?

PS Interior: allow me to check, at the moment I am not sure

Counsel: You don’t know

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: If you read your affidavit, you say “I am advised by the 2nd and 3rd respondents’ advocates the said decisions are not judicial determinations which bind the Kenyan state in the manner suggested by the 1st petitioner”

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: You stand by that statement?

PS Interior: I stand by that statement

Counsel: Does that sound like a statement of someone who submitted a report?

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: I need to check – but I mean the African Committee issued recommendations but they are not binding – but I’m not sure if we submitted a report, whether it’s a report that says we didn’t comply, a positive or negative report, I am not sure

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Wouldn’t it have been easier when you were responding to this issue in your affidavit to say “we have responded” – you want to give Nubian children birth certificates, correct?

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: Our effort to register Kenyans is not guided by African Commission on Human Rights – it's guided by our own Constitution and our own beliefs

Counsel: But you don’t mind your image at the African level, do you?

PS Interior: We do

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: It’s important for the Kenyan state – image and compliance at the African level

PS Interior: Yes

Counsel: As a country we value rule of law

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: Rule of law is not generated by the African Commission on Human Rights – we have a responsibility as a govt to go back to our constitution about what to do, we comply with that; by coincidence, while we fill that mandate we probably also fulfill recommendations
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: You said Kenya values compliance with obligations at continental level, correct?

PS Interior: Correct

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: in your affidavit, you referenced a standing forum of the African Union Commission, which made a declaration called the Nouakchott Declaration, including commitments on integration, digitization, #CRVS, correct?

PS Interior: Yes

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: You’ve given compliance with this Nouakchott Declaration as one of the things you want to do to implement NIIMS, correct?

PS Interior: Yes

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: But it’s interesting how when it comes to the decision of the African Committee, you have not demonstrated any evidence to that Commission or this court on compliance with those continental bodies

PS Interior: We haven’t, and we are not obliged to do it

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel for respondents: Object that that counsel for petitioners keeps overrunning the answer of witness

Counsel @MarthaKarua: Established in this case that if the witness is asked a yes/no question and the counsel is not interested in the explanation, it's for re-examination
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Hon. Judge: I would like to remind to ask direct questions to get direct answers, we have been on this questions for 5 minutes – can we move on?

Counsel agrees to move forward
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: What comes out from your answers is that you choose the continental declarations to abide by and the ones to ignore, depending on your preferences. Would that be a correct illustration?

PS Interior: We choose to do what our constitution....

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: It’s a yes or no question – do you choose what to comply with at the African level?

PS Interior: Yes, we do

Counsel: You choose?

PS Interior: Yes

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel refers to the #HudumaNamba data capture form and ask witness to read the disclaimer at the bottom

PS Interior: Information may be shared with an authorized agency

Counsel: Asking for consent?

PS Interior: That’s the meaning
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: If you look at the form there is only one box, only agree, tick, correct?

PS Interior: Yes

Counsel: Would it have been better to have a disagree there?

PS Interior: That would mean the person has a choice to disobey the law

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: What if the person has withdrawn consent from having the information shared?

PS Interior: Then the person wouldn’t register in the first place

#HudumaNamba #NIIMS #dataprotection #privacy
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: So the moment you register for #HudumaNamba, you consent to having your information shared?

PS Interior: With authorized institutions
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: There is no two ways about it – you have to agree? And this is what the law requires?

PS Interior: (reads the disclaimer again) – I think that’s straightforward

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: One of the interesting statements that has been made in regards to this project is the fact that #NIIMS will be useful in protecting national security, correct?

PS Interior: It’s one of the uses

Counsel: It’s a serious use, isn’t it?

PS Interior: Yes

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: If you refer to your data protection policy, in the affidavit of Jerome Ochieng, on exemptions – can you read that?

PS Interior: “The policy acknowledges there will be exceptional circumstances where personal data can be processed without the data subject’s consent”
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: If there's an attack & we need to pursue the attackers, we need to check whether the traits we found here match the people we suspect – we don’t go to them to ask for consent

Counsel: So in determining the circumstances of processing data without consent, it’s you?
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: Provision for the Data Protection Officer in place…

Counsel: Asking a straightforward question – do you determine?

PS Interior: I do

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: There is no control, or a list to say “in case of a terror attack, you’re exempt..”

PS Interior: There are security laws

Counsel: I am asking about this policy

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: Policy gives exemptions for national security – and there is no document that shows exceptional circumstances, so the entire #NIIMS system and the sharing of data could be justified as exempted?

PS Interior: Cannot read this policy outside national security laws
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: #CRVS – you talked about rapid results initiative – the government values commitment to rapid results initiative, correct?

PS Interior: It’s an initiative of government

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: You have referred to the SWOT analysis done w/UNICEF – interest of UNICEF was to ensure the issuance of a unique identifier from birth, correct? In the form of a birth certificate?

PS Interior: Yes

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: You talked about benchmarking visits – one that was mentioned was Estonia. The recommendation from that trip was to do incremental registration of births for all children, correct?

PS Interior: True

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: So, Dr. Kibicho, instead of doing massive NIIMS project of registering people, including adults, foreigners, and you have acknowledged there are errors in the various databases – why couldn’t you incrementally capture children from birth & issue them w/unique identifier?
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum PS Interior: We are mixing people who are already alive now with birth certificates and IDs – with those who will be born after we start this journey

Counsel: What we are interested in is 100% of all the children who are there

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Discussion continues on capturing Kenyans already living and those yet to be born

Counsel: Even if your data collection exercise, you did not try to pick children from birth

PS Interior: We did – the only data we didn’t collect is thumbprints for children below 6 years
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: You collected the data of children below 6 years

PS Interior: But the decision to bring the child was up to the parents

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel: You did not say the law which authorized you to collect the data of these children?

PS Interior: Registration of Persons Act 9A

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum Counsel @yussufugas has no further questions, turns to Victor Kamau of @HakiKNCHR

Counsel for respondents objects that the 3rd petitioners didn’t give notice

@MarthaKarua says operating as a team and Bashir left last 2 questions to Kamau
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Hon. Judge says Bashir can ask more questions but Kamau cannot – for expert witnesses it could be a team, but directions for cross-examination of deponents was clear

Counsel @marthakarua will ask the final questions
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Any subsidiary legislation following the amendment of the Registration of Persons Act

PS Interior: We don’t have other than the #HudumaBill2019, so must rely on Registration of Persons Act

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: So no regulations governing the registration?

PS Interior: Using Reg of Persons Act

Counsel: No new regulations since amendments?

PS Interior: No

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: Do you mean regulations that went to Parliament?

Counsel: Any

PS Interior: We have
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Cross-examination has concluded, re-examination will start after a lunch break

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: About #NIIMS, which is like the proverbial elephant that 7 men describe differently depending what part they touch. What is NIIMS?

PS Interior: We start with the commitment of the govt since 2013 towards digitizing. It's not a new effort - started 1989

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: #HudumaNamba is citizen-focused for services - so we wanted a tool to help govt plan, offer services to Kenyans in a manner that is "least inconveniencing" - it will be easy for govt to carry out polio vacc, now we only estimate how many to buy

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: When it's time for kids to go to class 1, we will accurately know how many kids we will have - so how many teachers, books, etc. At 18 - elections - digital pop. register to push data to agency that needs it

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: From mwananchi perspective - in your wallet you have 10 cards; why can't we have one that implies the others? That is the promise the govt gave Kenya when it came to power

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Are you aware the Constitution Article 118 delegates legislative powers to Parliament?

PS Interior: Aware of that in Art. 118 and Art 1 - we decided to use both legislative because there was active public participation completed well ahead of time
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: Before court started Feb 14, we reached out to chiefs Jan 21 to Feb 5 2019; prior to court orders in April, did public sensitization


(What about before the Misc. Amendments Law passed?)
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Parliament also has own procedures?

PS Interior: Aware

Counsel: Data capture form - mandatory vs. not

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: For this form, only mandatory information needed for citizens above 18 was ID. For those below 18, needed birth certificate

For non-citizens, passport or alien card

Every other information wasn't mandatory

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: In the field, if someone doesn't have NSSF, no DL, didn't go to school, not employed - did not force anyone to fill those fields

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: You remember when you read at the bottom where the form says registration was mandatory?

PS Interior: That was before the court ruling, we were meant to start in March, ruling was around then - to target 38 million we had printed many blank forms

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: The hard copy - you could even leave with it. The main form was the digital capture form through the kits

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: You were asked - if govt had this data, why fresh registration?

PS Interior: Databases interfered with, fake documents were produced - people may commit crime, we get their docs, but at NRB the document doesn't match doc on record

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: Time had come for a responsible govt - only way to clean it up is to have opportunity for claimant of the identification to come before us and we re-verify - that person will never be asked again for any govt document in their life

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: For a child, photo at age 12 won't resemble them at 18 - we want to provide opportunity to change your details

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: You were asked about data minimization - why collect agricultural info, physical address?

PS Interior: Use of #HudumaNamba is planning - need to know where you are; people may not live where they were born - there is movement. Extract from manual forms or you tell us?
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Is #HudumaNamba registration an ongoing exercise?

PS Interior: We bought 31500 registration kits. Now given to Chiefs & Assistant Chiefs... no Kenyan gets an ID without Asst. Chief signing form. Kits to remain with Assistant Chief forever - will use it for ID reg, etc.
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: for birth certificates, it's up to parents, it's not govt that says you must have a birth certificate - and Civil Registration clerks will also have kits to update every time a birth occurs, same for death certificate

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: In the future, won't need to be told don't leave home to be counted in #census - the database will be updated

Counsel: Why anchor on Asst. Chief?

PS Interior: Handles minimum administrative unit, they know everybody, so if apply for ID they must sign

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: If Assistant Chief says they don't know you, then we go to step 2 - vetting

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Software - where was it developed?

PS Interior: 100% developed by Ministry of ICT; they have taken it through penetration tests

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel for petitioners @MarthaKarua objects that the questioning is going to areas never covered in cross-examination (i.e., testing of the system)

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel for respondents states questions around software and security of the system were included - administrator giving us "very enlightening information" and it's within purview of what was asked in cross-examination

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: 38 million registered - through threats?

PS Interior: No one raised complete

Counsel: And dates of sensitization, before the court case?

PS Interior: Reached out to chiefs from Jan 21; Pilot training Feb 15 to 17

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Possible to achieve this number without awareness?

PS Interior: There were queues, etc.

Counsel: DNA - are you collecting DNA?

PS Interior: We are not planning to collect DNA - DNA is only a comparison, like if you have a paternity problem

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Question from George Kegoro's affidavit re: petitioners not opposed to #HudumaNamba - you had said it's like someone who says "I love you" but then slaps you

PS Interior: Petitioner wants process of the digital register stopped - speaking from both sides of mouth
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: In terms of public awareness - do you even have a website where people can access info on registration?

PS Interior: Not registering anymore - but have a website for information

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Even the CEO of @NubianRights came here and said he met w/CS?

PS Interior: We're open. Even the CS has recognized #statelessness, people who are not Kenyans and also not recognized in the country we suspect they belong to - CS has established a taskforce

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel for petitioners @MarthaKarua objects, saying these questions on #statelessness go beyond scope of cross-examination

Counsel for respondents says counsel for petitioners Bashir said "you can be a Kenyan without documents" - it is in that context I ask

#HudumaNamba #NIIMS
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Hon. Judge says her understanding was Bashir was referring to Kenyan citizens without documents, not stateless persons

#HudumaNamba #NIIMS
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior adds an example - street families who are found, likely Kenyans, there is a procedure to follow; seen this happen in Dandora dumpsite - that's the essence of having a vetting committee

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: If Assistant Chief doesn't know, can make a committee, make a decision to waive requirements so that Kenyan gets a document

Once they have the document, walk to next desk and register for #HudumaNamba
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: "We cannot register them for #HudumaNamba without resolving their primary problem, and that is our responsibility"

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Back to public info - do you ever decline?

PS Interior: Never turn people away who ask for info

Counsel: In affidavit, have you provided a lot of info on #NIIMS?

PS Interior: Given adequate, maybe not exhaustive, on why NIIMS, benefits, & use

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: Besides savings of things like census, which cost 18B, what future savings are there - plus conveniences to the mwananchi? Govt doing social protection based on good will, but w/digital register don't have to walk through villages looking for people >70

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: Benefits, we can go on and on - benefits are infinite

Counsel: Data Protection Policy - was it designed for #NIIMS?

PS Interior: Broad - collection of data started when we walk in a building and they ask for ID; in traffic, data picked by cameras

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: Whatsapp has your data, Yahoo has your data - this policy is much broader than #NIIMS

Counsel: Data Controllers - is that a proposal in the pending bill?

PS Interior: Yes, what we have now is the policy. Like for any law, we start with a policy that generates law
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: If enacted, you would then appoint these controllers?

PS Interior: Can't appoint people by a policy - only by a law, but each institution that collects data from public has administrator of that data - NRB, CRS, KRA, NTSA - all have data admin

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Does the fact the #DataProtection Bill was tabled recently mean there aren't laws?

PS Interior: Every institution that collects data has rules on how data is protected; for the bill, there are areas not covered by any law like entering buildings; upcoming law is broader
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: Want to tidy up data protection & security

Counsel: It was put to you that you put the cart before the horse

PS Interior: Executive has resp to deliver on promises to Kenyan people within existing laws

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: Before Feb 2018 didn't have legal space for #NIIMS & #HudumaNamba - so we proposed amendments to the Registration of Persons Act, which became the new section 9A

Other laws govern registration - so that's why Executive Order refers to them

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Are you aware there are several laws that criminalize unauthorized access to data?

PS Interior: Yes - and I even showed the court where Reg of Persons Act talks about divulging data

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: You were questioned about "all" Kenyans

PS Interior: Read together with what I just stated - we are not reading it alone; to tidy up we are proposing a law to bring what we are saying into one house (#HudumaBill2019) - all to us meant all Kenyans without exception
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: It was put to you that an Executive Order cannot amend a law - does it purport to amend a law?

PS Interior: No, in carrying out the exercise order says clearly the Inter-Ministerial Committee should be guided - and the key word is guided - by other laws

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: Wanted to be clear we have adequate laws on refugees, foreigners, children, etc.

Counsel: Was it your understanding you had to abide by the law?

PS Interior: Yes

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Does President have power to issue Executive Orders under the Constitution?

PS Interior: Yes

Counsel points to specific article in the Constitution

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Costs vs. benefits - what do you have to say about #NIIMS?

PS Interior: There are benefits that are directly money and those that are not money, but conveniences to Kenyans. Of the 9B, our main cost was 31,500 kits and payment to RAs

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: If we implement this completely, we will never need to do census; in the US can someone tell me when they are told not to move so they can be counted? Want something akin to Social Security Number

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: Will save on census, voter registration, etc. When Kenyans turn 18 and IEBC picks that data, you don't have to travel to your village to vote - that's where the rest of the world is going

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: When a child gets a birth certificate, that number will follow them

Counsel: From cradle to grave?

PS Interior: Yes, such as if you are discharged from hospital but you have to walk around all day to sort out NHIF - these conveniences

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: The Nubians. Has there been discrimination?

PS Interior: There is not and the government doesn't discriminate. In Busia, there will be tendency if our services are better for a person who is Ugandan to try to acquire Kenyan citizenship.

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: If Assistant Chief doubts, can make a committee. It would be on their neck if they sign. If person near Namanga, want to be Kenyan. Dealing with this in the refugee camps, people want to be Kenyans

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: i want to dispel the notion that whenever a Nubian appears in front of the registrar they are told, go and vet

It's up to the Asst. Chief - don't want my neck on the chopping board when there is provision for vetting

Go to Nyeri & you'll find vetting

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: Every Kenyan is vetting, only that for some of them a committee does not sit - no Kenyan gets an ID without Assistant Chief signing

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Are border communities the same as tribe?

PS Interior: They are not - anyone at a certain border, when Assistant Chief not satisfied, they are vetted

But not everyone in Busia when they want an ID is subjected to vetting

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: There is no vetting particular to the Nubian community; it's done as discretion of Assistant Chief - if you are in a border community or in a cosmopolitan area where the Asst. Chief is not sure

System does it equally

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: For rapid results initiative, the place where there is a lot of enthusiasm for registration is in #Kibra

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: On affirmative action - please read affidavit -

PS Interior: "The govt of Kenya has continually taken positive steps towards promoting registration of Nubians & other minorities in the country" inc. having community reps on vetting committees & mobile reg

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Historical discrimination

PS Interior: Anyone here before 1963 and their descendents are Kenyans; those who came later - attempt to say I'm in this geographical space, I need to be admitted without question

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: There are obviously communities in this country that "suffer from that disadvantage" and govt has gone out of its way to ensure all considerations put in place - Makonde, Asian community considered

Even Nubian communities are part of this consideration

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR PS Interior: But it doesn't mean a Makonde who comes can say they are part of the 43rd tribe if they don't qualify as a Kenyan

#HudumaNamba #Statelessness
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel asking @ convenience of #HudumaNamba

PS Interior: If someone doesn't want convenience, no one will ever force someone to register. But at the end after we have collected all this, what do you give Kenyans? Huduma Card w/digital chip, a third generation ID that's digital
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Vetting committees - 10 members, 1 elder

PS Interior: Elder trusted by Asst Chief to give accurate information - not about numbers on the committee - each comes with a perspective to convince Asst. Chief to sign form & minutes from meeting sent to NRB

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: "Best interests of the child" - any benefits for children under #NIIMS?

PS Interior: Started w/planning side b/c children require services - want to give services well through planning - info asked not different than what CRS asks for

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR Counsel: Then you were taken to the @ACHPR & @acerwc - can you confirm in your affidavit you have responded fully?

PS Interior: I can confirm we did not agree with all the recommendations, but we actually responded and gave a report that had our point of view

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR Counsel: Can you confirm paragraphs start w/"recommends"?

PS Interior: I remember I was reading "recommend" but I can confirm

Counsel: Mere recommendations that govt can take or not?

PS Interior: Not every recommendation given by AU, UN is implemented - about constitution
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR Counsel: First allegiance to?

PS Interior: Constitution

PS also confirms paragraphs start with "recommends"

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR Counsel: You put a lot of emphasis on physical presence of registrant

PS Interior: Emphasis on biometrics because you cannot duplicate fingerprints - needed the person to see if the data matches, if it doesn't match then go to verification

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR Counsel refers to data capture form; - it was suggested there should be a box to disagree; does it mean if you agree you tick it?

PS Interior: On physical form we didn't want people to sign b/c not everyone can; given a stylus pen to sign or give digital thumbprint

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR PS Interior says he doesn't understand why someone would fill out the form, which was voluntary, and then disagree with data being shared

#HudumaNamba #NIIMS
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR Questioning moves to national security

PS Interior confirms that if a crime is committed, can't go to ask criminals if we can process their data or not; there are laws that classify security issues and levels of crimes - murder vs. stealing a chicken

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR PS Interior says when there are terror attacks, there are recovered IDs - and there is no time the ID matches the actual person, it leads you to someone who is innocent because of the adulteration I talked about

#HudumaNamba #NIIMS
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR PS Interior says in some circumstances, protections waived

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR Counsel asks about incremental registration of all births

PS Interior says some people have all documents, but from Estonia understood for full implementation a child born after court allows us to proceed will have one file from birth to death

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR PS Interior continues - for us who are alive, we try to imitate as if we were born when #NIIMS was here - but in 70 years when we are not here, everyone will have a unique identifier

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR Counsel asks PS Interior to confirm what law govt is using to implement NIIMS - PS confirms it's the Registration of Persons Act

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR Counsel allows PS Interior to speak to why the court should allow #NIIMS to move forward

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR PS Interior:
We want to digitalize the population register to get benefits that are immense in terms of service provision

When you get a digital ID card there will be a chip encrypted and depending who you appear before, they will have a reader that gives them the relevant info
@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR PS Interior continues that in the future you won't have a driving license, but if you appear before a traffic police they can read just information relating to your driving permissions

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR PS Interior: Can we go to 3rd generation ID in a format that solves this historical problem? Allow us to give Kenyans this benefit

Counsel for respondents has no further questions

@MarthaKarua @yussufugas @thekhrc @acerwc @ACERWC_CSOForum @HakiKNCHR @ACHPR The court has no questions and releases PS Interior Kibicho

Based on the time, the cross-examination of the two remaining witnesses will start tomorrow at 10am

The two witnesses for tomorrow are PS ICT Ochieng & then expert Mr. Mureithi

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