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The 6th and last day of tjr #NIIMS hearing has started - follow us @NubianRights and @thekhrc for live updates
Respondents call their witness PS Jerome Ochieng and he is sworn in
Jerome Ochieng is in charge of the State Department of ICT and has sworn 5 affidavits on behalf of the 5th respondent
JO holds a masters in Information Engineering
JO will be cross-examined by @waikwawanyoike on behalf of @NubianRights and @Awelejack on behalf of @thekhrc.

Waikwa begins his cross and asks about JO’s professional background
JO wants to clarify that the Ministry of ICT has two slots for principle secretaries - for ICT and broadcasting and he currently holds both roles but his focus is ICT
Waikwa establishes that JO is part of the Committee on #NIIMS and #HudumaNamba

JO confirms that while the PS Interior is the administrator of the system, he has the intellectual background on the system design
JO does not agree that the start of #NIIMS goes back to 2018. He says that the technical considerations of NIIMS went back to Jan/Feb of 2018
“Where is the #HudumaNamba data?” - “it is in Kenya”

“Is it in individual files or in a master database?” - “it’s in the master database”
JO confirms that analysis of the data has not yet started but that they are able to do it once the Court allows them to. He confirms that they have developed the algorithm needed for deduplication
“The Software aspects of the system are developed in Kenya by Kenyans?” - “yes”
Waikwa asks whether under the industry standard one of the first things to be done would be Modeling (developing a prototype) - JO says not necessarily but he says that tests have been conducted
JO confirms that penetration tests have been done to check the security of the system and deduplication has been tested
“Reports of this analysis would be generated to be shared with you and engineer Kibicho, correct?” - “yes”
Waikwa highlights that part of the petitioners complaint is that the system could exclude communities such as the Nubians and endanger their citizenship
JO understands that part of the petitioners fears relate to system design, in particular risk of exclusion and dangers to privacy rights
“Have you provided to this court any reports on any of the tests that you have performed?” - “No”

“Have you provided any report that shows that when you tested for penetration, the system passed?” - “No”

#NIIMS #HudumaNamba
JO confirms that the #NIIMS kits were acquired by #IDEMIA (previously #OTMorpho). JO can not remember when this as but estimates at first that it would have been early 2018 but then says that he would have to refresh his memory by looking at documents
Waikwa continues questing JO on when the agreement with #OTMorpho was entered into and he estimates it was in late 2018, when the kits were also delivered
Asked how many companies they considered, JO says that they considered three and that it was a restricted bidding process.

He imagines that the Ministry of Interior has information relating to the procurement buy doesn’t know if they have provided info to the Court
Apart from the supply to the kits #OTMorpho has not provided anything in support of #NIIMS according to JO
PS Ochieng confirms that #NIIMS is meant to be a single source of truth on every Kenyan resident and that the more data they have, the more this will reflect the goal to have a single source of truth
JO confirms that #GOK has analogised citizen data to oil
Waikwa asks about the public participation process of the #HudumaBill. JO confirms that in that process he said that “data is the new oil” - he says that this is an international position adopted by Kenyan
“Would you agree that the more oil you have, the more ahead you are?” - “no”

“You think it’s appropriate to analogise personal data to oil?” - “yes”
Waikwa is now asking about the SWOT analysis which was done together with @UNICEF - JO confirms the main recommendation was to have universal birth registration with a unique identifier
Asked whether #GOK has done a cost/benefit analysis comparing doing the Estonian system in Kenya and #NIIMS, JO says that there hasn’t been as far as he is aware and that no documents on this have been provided to the court
Waikwa asks who was involved in developing the SWOT analysis. JO does not agree that it was only government officers and UNICEF.

Taken to the report itself, he says that there was a consultant who was not related to the government or UNICEF. There is no one else.
Asked about independent institutions such as @HakiKNCHR under the Constitution, JO confirms he is aware that they are tasked to monitor how #GOK implements rights.

He confirms that none of them we independent offices were involved in the SWOT
Asked whether other NGOs were involved, he says they were “implicitly” involved
Waikwa is now questioning JO on the data protection policy. JO has not provided the court with any evidence on who was involved in the development of the policy
JO says that the data protection policy was not developed in part to respond to this case
JO is asked to read out from Kibicho’s affidavit which states that the lack of linking of databases with personal info is inefficient and he agrees with this
PS Ochieng confirms that harmonisation is one of the objectives of #NIIMS
JO agrees with Kibicho’s assessment of what the benefits of #NIIMS are and who stands to benefit from the system
“When he talks about institutions and people who stand to benefit its because these would have an ability to interact with #NIIMS or #HudumaNamba?” - “yes”
JO agrees that one of the aims of #NIIMS is interlinkage and harmonisation of the different government databases
JO agrees that the introduction of #HudumaNamba is a watershed moment in Kenya
“Is there an identification crisis in #Kenya today?” - “yes”

“Is government able to function given that there is an identification crisis?” - “yes with challenges”

He confirms the crisis goes back to 1989
“Would you agree that a credible system should take rights of Kenyans and non Kenyans seriously?” - “yes” but he does not agree that we should wait to do it right and that we are in a rush to have #HudumaNamba
Asked whether without #HudumaNamba the government would collapse in the next few months over the crisis of identification, he says it could happen anytime that they would collapse due to challenges arising from this. Due to the urgency #GOK doesn’t have time for alternatives
“Do you know what law establishes #NIIMS?” -“I know that NIIMS is based on a number of other Acts” saying that there is no #NIIMS law specifically
JO confirms that he has seen no law, rule or regulation other than the Registration of Persons Act tut establishes #NIIMS. There is an executive order but there also is no policy. He agrees the foremost policy is the Registration of Persons Act
“You are aware of the concept of rule of law?” - “yes”

He agrees that rule of law means that the law is supreme over acts of government and private parties
JO agrees that any government action must be regulated by law
“Is there a law establishing #HudumaNamba?” - “The law establishes #NIIMS is section 9A of the Registration of Persons Act” he confirms that there is no reference to Hudma Namba there

“You are saying #HudumaNamba is #NIIMS” - “yes”
Waikwa walks JO through the Swahili terms for National Integrated Identity Management System (#NIIIMS)

“So how did you go from #NIIMS to #HudumaNamba?” - JO says that there was a communication concept taking into account the level of education of Kenyans
JO agrees that the communication concept advised the use of the term to #HudumaNamba
He thinks 50% of Kenyans could not translate National and that the percentage grows with Integrated, reduce with Identity and increases again on Management System
“Do you know that part of the government’s responsibility is to sensetize the public?” - “yes”
Waikwa points JO to the data capture form and he confirms that this form is for #HudumaNamba not for #NIIMS
“Would you say that what we have in 108/109 the official doc on registration is based on section 9A?” JO says that it is but confirms that there is no reference to #NIIMS in the form
“Would you agree that you chose the term #HudumaNamba to engage in a campaign of deception?” - “no I wouldn’t”
Waikwa suggests that part of why this process was labelled as the Huduma Process was so that Kenyans understood it would provide them service benefits and JO agrees
JO confirms that no data is collected on DNA or GPS
JO confirms that under separation of powers, the executive cannot pick and choose what part of a law to implement but has to implement the full law.

He confirms that therefore the law currently allows #GOK to collect DNA and GPS info
JO agrees that in certain circumstances it would be legal for #GOK to require DNA or GPS from Kenyans without having to amend existing laws or introducing new laws
JO confirms that he@believes that there are adequate existing laws relating to concerns around data protection and privacy in relation to #NIIMS
JO reads the long titles of the Access to Information Act, The Communication and Information Act, and the Cybercrimes Act
"Are you aware that a significant number of provisions in the Cybercrymes Act have been suspended by the Court?" - "I am aware of the suspension but not of the details"
Waikwa establishes that part of the reason the AG asked that the order of suspension be lifted was because he noted that it is difficult to implement some of the sections JO has referred to in his affidavit as protecting #NIIMS
JO confirms that he is aware that some of the sections he referred to in the Cybercrimes Act are unimplementable
JO agrees that the data protection bill is aiming to provide a regulatory framework on Articles 31c & d of the Constitution on privacy and that he is not aware of any law that currently does this
JO confirms that there are currently no laws establishing the office of a data control officer
"Are you aware of any law in force that specifically speaks to what you tried to achieve under part 5 of the data protection bill on processing sensitive to personal data" - "yes, the Access to Information Act"
"Are you aware of any law in force that specifically speaks to what you tried to achieve under part 5 of the data protection bill on the transfer of personal data outside of Kenya?"
The Court clarifies whether the previous question related to part 5 and Waikwa confirms that he is now talking about Part 6
JO: "When you say part 6, I want to be very clear what part 6 is talking about" - Waikwa says that he will have a chance to expand more in re-examination but as a yes or no answer is he aware of a law in force regulating that? JO says that he is not
JO confirms that it is mandatory to have an ID for registration and he understands that part of the complaint of Nubians is that they do not have access to ID docs.
"Are you aware of the concept of exclusion by design, in which you can design a system that excludes a certain category of people?" - JO affirms that #NIIMS is able to filter and desegregate based on information given
"Is it possible that a Kenyan citizen who does not have an ID will be identified as a non-Kenyan?" - "that's an inherent functionality of any database"
"So if the system is filtering and the person has not provided an ID, it's more likely that the system will label the person as a non-system" - "it would, yes, and any other database"
Waikwa refers JO to Karanja Kibicho's affidavit and the manual meant to assist people dealing with #NIIMS

JO reads the section that states that people without a national ID who register for #NIIMS should be registered as "XX" by the registering clerk
"So there is a field under citizenship for certain individuals if we follow the manual, that will show XX, right?" - "Yes"
On the question of whether the system could register a Kenyan as a non-Kenyan, JO says that he would not agree
Referring JO to Edward Muchemi's affidavit, Waikwa asks whether part of what the system will help with is giving security officers access to information on where people have been - JO says that it is not possible to detect this from this system
"Does this system require a person to do verification before they acquire services?" - "No it does not"
"So was my understanding wrong from Kibicho's evidence that if a police officer stops you, he will be able to check your card details" - "yes that's possible"
"Would you agree that when that verification happens, some metadata is left?" - "Yes"; JO confirms that there will be a log that says "Police officer X has interacted system and his query was ID number 123 and he got this return"
The log would also show where the interaction happened
Having established that metadata will be generated through NIIMS, he asks "Do you know whether there is a rule, law, or regulation that specifically speaks to how metadata generated throuhg #NIIMS should be handled?" - "Yes, specific to data [rather than NIIMS]; Access to Info"
"Does the Access to Information Act say how long the government is allowed to retain metadata?" - "I think it does" - "Are you aware of the section?" - "no"
Waikwa asks whether there is a law on when government should purge metadata generated in NIIMS and JO says that this is also covered by the Access to Information Act
"Where are the servers for deduplication in NIIMS?" - "They are in Kenya"; Waikwa follows up and establishes that the system is built locally largely under JO's guidance and the ICT ministry
"Brian Omwenga testified that if there is a need to change the system, it can be changed. Would you agree?" - "Yes"
"Mr Karanja Kibicho testified yesterday that the only reason you have not been able to undertake activity under #NIIMS is because of the court order; would you agree?" - "I would"
Waikwa asks about system structure and JO says that it is a hybrid system which is centralized and non-centralized. He confirms that there is linkage between the functional databases and the master database
"@iam_anandv spoke of a hub-and-spoke system as an analogy - would you agree that this is a fair assessment?" - "Can you use normal English?" - Waikwa explains interlinkage between functional and master databases and JO agrees. He states there is no linkage between functional DBs
@iam_anandv On cost, Waikwa asks whether significant cost in #NIIMS came form buying the kits and paying the enumerates and does not lie in the system design, JO agrees
@iam_anandv "Are you aware that the petitioners are not opposed to digitization per se" - "no"
@iam_anandv Waikwa informs him that this is the case and JO finds that "good news"
@iam_anandv Waikwa explains that the petitioners fear that the system is designed in a way that might exclude them and may also cause a breach of the right to privacy. JO agrees that this is is part of their complaint
@iam_anandv @iam_anandv said that one way of addressing concerns would be to build a siloed system - JO says he would completely disagree

On data minimization; JO disagrees that it would be best to put as little information as possible in the master databse
@iam_anandv His position is that it would be best to put as much information as possible in the central database "and secure it"
@iam_anandv "If this court were to order that you are to convert #HudumaNamba in a siloed de-centralized system with minimal information stored in the central databse; would you comply with that?" - "Yes"
@iam_anandv "If the court were to order that the master database were to contain only the minimal necessary information on identity and identification, would you comply with that?" - "To the extent of compliance, we are a law-abiding government, I say yes but we would also..."
@iam_anandv Mr Ochieng confirms that the government would abide by such a court order and that it is possible to change the system in that way
@iam_anandv @waikwawanyoike has concluded his cross examination and @Awelejack begins his cross on behalf of @thekhrc, the 2nd petitioner in the #NIIMS case
@iam_anandv @waikwawanyoike @Awelejack @thekhrc JO is asked to summarize what is different about #NIIMS to previous registration services in #Kenya
@iam_anandv @waikwawanyoike @Awelejack @thekhrc "There are various registration systems in different databases that sit in isolation. Our main objective with #NIIMS was to come up with a single database that collates the information from the different databases"; adds #HudumaNamba should function as a single source of truth
@iam_anandv @waikwawanyoike @Awelejack @thekhrc "In the process of consolidating this data, we are going one step further and including digital biometric data"; he describes this as the fingerprint and facial recognition which have been captured
@iam_anandv @waikwawanyoike @Awelejack @thekhrc "For this particular exercise, we limited ourselves to fingerprint expression and facial recognition"
@iam_anandv @waikwawanyoike @Awelejack @thekhrc "So you would agree with me, that basically what biometrics seek to achieve is to reduce essential characteristics of the human person into the digital and automated form?" - "correct"
@iam_anandv @waikwawanyoike @Awelejack @thekhrc "Do you understand that the collection of the human elements of your person basically reveal who you are?" - "yes" - "does that strike you as sensitive personal information?" - "it is personal information"
@iam_anandv @waikwawanyoike @Awelejack @thekhrc Awele establishes with JO that once the information is given away, it could be manipulated for other purposes
@iam_anandv @waikwawanyoike @Awelejack @thekhrc Asked whether #NIIMs has been established because of the uniqueness of biometrics generally, JO affirms
@iam_anandv @waikwawanyoike @Awelejack @thekhrc Referring JO to his affidavit, Awele asks him if it would be a fair summary that his ministry was the lead ministry in the conceptualization of #NIIMS - "yes" and it was under JO's stewardship and watch
@iam_anandv @waikwawanyoike @Awelejack @thekhrc JO summarizes his understanding of the petitioners's concerns as relating to the privacy and security of their data under #NIIMS
@iam_anandv @waikwawanyoike @Awelejack @thekhrc "You started establishing #NIIMS sometime in January of 2018" - "Yes" on the software creation he believes this was around April, just about when registration started
@iam_anandv @waikwawanyoike @Awelejack @thekhrc The system became ready for deployment this year
@iam_anandv @waikwawanyoike @Awelejack @thekhrc JO confirms that the development of #NIIMs was a joint effort between various government ministries and departments
@iam_anandv @waikwawanyoike @Awelejack @thekhrc Awele refers JO to the training manual for #NIIMS asking "if NIIMS was operationalized this year, on what basis was the training manual created?" - JO is looking through his documents
@iam_anandv @waikwawanyoike @Awelejack @thekhrc JO says that "the development is a process that started way back in 2019" but confirms that it was completed in 2019
@iam_anandv @waikwawanyoike @Awelejack @thekhrc Asked whether the process of #NIIMS development started before the enabling law was developed, JO says "yes; the beginning of the process of development"
"What were the guiding principles for the establishment of NIIMS"? - "it was based on the Registration...this thing called persons registration something..." - Awele establishes that this was passed into law in 2019
Asked what the components of #NIIMS system architecture are, JO says that "technically NIIMS is a three tier system. The first layer is data lawyer; second layer application layer; third layer is user access layer, which also has three levels: primary, secondary and other users"
"Where did you get this information from?" - "Technical knowledge" - "Can we find this information somewhere?" - JO says that it can be googled
Pressed on whether there is publicly available information on the #NIIMS system, JO says that it is not publicly available due to security concerns
On data security, JO explains that the data is secured at each layer through encryption
"What prejudice would you suffer in revealing the architecture of #NIIMS if it is impossible to gain access to that information since it is encrypted" - JO says that hackers would be given access to start at the end if they knew the architecture
"Do you know that Engineer Kibicho yesterday described very animatedly how secure the system is and that it has been tested by professional hackers" - "yes and by me as well" - "so why are you afraid of the public hackers?" - "no system is fool-proof"
JO confirms that multiple penetration tests were conducted by the team

"The data you are collecting; whose is it?" - "The citizen's data" - "do you want the citizens to believe that what you are saying is the gospel truth without any information on the security of the system?"
JO says that the ICT Ministry has been entrusted with this and that they are beyond reproach
JO confirms that his team went to Estonia in a benchmarking exercise on #NIIMS. Asked how the team got the information in their report, JO assumes that this was shared by the country and is also info available online
"Do you think Estonia would have provided you with the information on their system architecture if they believed that this was a danger to the security to their system? Why do you think #NIIMS is so special that you would suffer prejudice if you gave us the same info?"
JO says that they cannot show the source code and Awele clarifies that he has not asked for the source code but is asking about architecture
"What is so special about #NIIMS that you cannot give us the same information about it that Estonia has shared about their system?" - "As the PS, I would still insist that we not share this information"
Asked about Brian Omwenga's report, JO says that it was not formally adopted and that it was just guidelines. He says that these were some of the things the team were looking at in developing the system
Awele highlights that open standards and pre-defined security policies are two of the things Brian Omwenga recommended
"We have not published our security policies" - "but you agree these are good recommendations and guidelines?" - "They are" - "But you have not complied with them" - "we have not"
JO: "as you talk about publication, the citizens of Kenya would really not have a problem but publication here would go beyond our boundaries. We need to shield ourselves cause once you have your documentation online, you don't know to what extent it goes"
Awele asks why there is a problem to expose the system to public scrutiny when it improves the system to expose the system to professional hackers - JO says that with "ethical hackers" this is their bread and butter
"How objective would they be as your employees?" - "They would be the most objective"; asked on what would be the worst that would happen to them if they were to breach protocols, JO says that the worst would be that they would be fired
We are taking a short break from live-tweeting for technical reasons and will be back soon; keep following @NubianRights and @thekhrc for more updates
We are back!
“Would you describe #NIIMS as a basic or advanced system?” - “it is an advanced system”
JO confirms that an advanced system requires particularly stringent standards on data security and says that #NIIMS currently meets these standards but confirms that this info is not publicly available
Asked whether info for #NIIMS is being given voluntarily, JO says that no one was coerced. He confirms that he is aware that the law that establishes NIIMS makes it an offence not to provide info and that this was only limited by court order
On the sharing of information between government agencies, Awele asks whether such info can be utilised by agencies without resorting back to the owner - JO confirms this
“Would you agree that without an enabling law, there is no way to ensure that interoperability principles are complied with?” - JO says it would not be difficult
“Access do Data by agencies is controlled at the systems level. We have an approval hierarchy in the design, which dictates what you can see and what you can do to that data” - JO confirms that this is based on regulations in the Ministry not publicly available
“Do you think if you made these regulations public, it would be easier to assuage the petitioners fears?” - “it depends” - “on what?” - “I have no guarantee [....] that’s subjective”
Referring JO to the data capture form, Awele asks who created the form and whether it is anchored in law. JO says that it was created by the inter-ministerial task force and that he is not sure in which regulations exactly it is anchored
JO is not worried about the discretion the government has in relation to what information and data they can seek for #NIIMS
JO says that they can engage an external audit of the #NIIMS system upon request by anyone who would want to do so. Asked about the basis on which a member of the public could request this, JO says he doesn’t know
“Do you know who has custody of the #NIIMS kits?” - “The #GOK” - “Do you know who has each of these kits? - “The Ministry of Interior” - “which officers?” - “The kits are stored in a store at the Ministry of Interior”
“You know who the administrator of #NIIMS is” - “the Ministry of Interior” JO says and confirms they were involved in the development of NIIMS
“If data is wrongly used or used for unawful purposes, are there any independent means through which the administrator could be held to account?”- “the law” - “since nothing related ro #NIIMS is public; how would I know?”
JO asks how Awele would know right now if his data is breached? Awele responds that he would not care as much as the data collected so far is not as sensitive

JO confirms that he would not currently know if the NIIMS data was unlawfully used
JO says an independent audit would confirm a breach of data and says that this could be requested by access to information
“Don’t you think it’s absurd that you conduct a data protection impact assessment and exclude the owner of the data from this and ask them to fully trust your assessment?” - “I don’t”
On GPS collection, Awele asks how members of the public can be sure that #NIIMS is not making use of the ability to process such info - JO says that they must trust the Ministry
JO would not want the provisions on GPS and DNA to be removed from the regulatory framework of #NIIMS in case it is needed at a later stage and they wouldn’t want to go back to parliament and seek extra permission
The court is adjourning for lunch and will be back at 3:15 for JO’s re-examination
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