Thread by @NubianRights

We will be back in court this morning as the #HudumaNamba case continues moving forward

https://twitter.com/NubianRights/status/1206541319721627654

The judges have entered the courtroom for today's court hearing on #HudumaNamba

The judges will give directions that affect both Petitions 56, 58 & 59 on #NIIMS and Petition 163 on the Misc. Amendments Act

Counsel are currently going through appearances - introducing the lawyers present for the petitioners, respondents, and interested parties

The judges say that when we were last in court, today (Dec 18th) was set for the judgement

Since then, there have been two developments

#HudumaNamba

The #DataProtection Act was passed in Parliament and the judges discussed how to proceed

Later on, the court received a letter from Parliament seeking directions in light of that enactment

Based on Section 60 of the Evidence Act, the court must take judicial notice of the Act

Judges felt they had two options - take judicial notice alone or give parties the option to give submissions on the Act

#HudumaNamba

That is why today was set for a hearing rather than the judgement, to get the views of the parties and then give appropriate directions

Judges feel judgement must be given as soon as they return from vacation

#HudumaNamba

Counsel @MarthaKarua for the 2nd petitioner asks 5th respondent to speak first

Judges say they already made a decision even before they received the letter from the 5th respondent to give opportunity to parties to comment on the Data Protection Act

#HudumaNamba

@MarthaKarua Counsel @MarthaKarua says the petitioners have no issue w/decision of the court, but the letter written to the parties only referred to the 5th respondent's letter

She wants to raise points whether it's appropriate for a party to write unilaterally to the court w/out cc: parties

@MarthaKarua The judges ask the 5th respondent if they copied the other parties

Counsel for 5th respondent says they wrote the letter and inadvertently forgot to copy all other parties

#HudumaNamba

@MarthaKarua Counsel for 5th respondent states they were advised the letter was inadmissible due to lack of copying the parties

They later served all the parties with the letter asking the court for directions re: #DataProtection Act

#HudumaNamba #NIIMS

@MarthaKarua Counsel continues that they felt they were assisting the court in writing the letter

The respondents would be happy to let the court take judicial notice of the Data Protection Act

They do not wish to make any submissions

#HudumaNamba

@MarthaKarua Counsel also informs the court there is a petition filed by @OkiyaOmtatah, Petition No. 454 of 2019, challenging the constitutionality of the #DataProtection Act - this petition is still pending

It's slated for mention on Jan 22, 2020

@MarthaKarua @OkiyaOmtatah Counsel Regeru for respondents says no one should not be faulted at all for his letter drawing the court's attention to the enactment of the #DataProtection Act

It must be common ground that the Act is central to many of the issues that engaged this court during the hearings

@MarthaKarua @OkiyaOmtatah The Act was passed after the hearing, but prior to judgement being given

So it was incumbent upon the counsel for the 6th respondent (The Speaker, National Assembly) to draw the court's attention to that fact

#HudumaNamba

@MarthaKarua @OkiyaOmtatah (Correction - all references above to "5th" respondent should be "6th")

@MarthaKarua @OkiyaOmtatah Counsel Regeru continues, even the letter aside, the presiding judge indicated the bench came to know of the Act & would take judicial notice of the Act

Counsel says that is the most important and relevant point here, as the court has the right and duty to take notice of the Act

@MarthaKarua @OkiyaOmtatah The respondents would like to leave it at that - for the court to take judicial notice of the Act and then move to issue the judgement

#HudumaNamba

@MarthaKarua @OkiyaOmtatah Part of their reasoning is the pending petition No. 454 challenging the constitutionality of the Data Protection Act

As of now, the #DataProtection Act is in full effect

#dataprotectionke #HudumaNamba #DPA

@MarthaKarua @OkiyaOmtatah Respondents do not want to bring substantive submissions on the #DataProtection Act into these proceedings, but to leave those to the other case

#HudumaNamba

@MarthaKarua @OkiyaOmtatah Counsel for the other respondents indicate that Counsel Regeru's statement covers their views - they would like the court to take judicial notice of the Data Protection Act and proceed to the judgement

#HudumaNamba #NIIMS

@MarthaKarua @OkiyaOmtatah The petitioners will now respond

@MarthaKarua says the petitioners have absolutely no problem with the court proceeding under section 60 of the Evidence Act

But petitioners do have an issue with the unilateral communication of counsel for 6th resp. to the court

@MarthaKarua @OkiyaOmtatah Awele's law firm (for 2nd resp.) was served on the 28th of November

That is after the court already wrote to the parties (on 26th of Nov) giving directions about today

#HudumaNamba

@MarthaKarua @OkiyaOmtatah This "inadvertence" is hard to believe

Petitioners see it as an attempt to undermine the impartiality of the court

Our law & procedures are very clear - all parties must have notice and there must be openness & transparency

#HudumaNamba

@MarthaKarua @OkiyaOmtatah Petitioners feel, if the court so considers, it would be appropriate for the court to lay emphasis that no party is entitled to correspond with the court unilaterally

It may appear a small point, but this was the practice in previous years esp. by parties representing govt

@MarthaKarua @OkiyaOmtatah @MarthaKarua cites:

Article 27 says we are all equal before the law & Article 50 on fair trial to show violations of the law by the unilateral communication and the delay

The 1st petitioner (@NubianRights) was only served yesterday

@MarthaKarua @OkiyaOmtatah The petitioners say they could have communicated with the court about potential breach of interim orders while the matter was pending judgement, but they did not

Counsel Regeru objects

@MarthaKarua says she was only giving a hypothetical - what if we had done that

#HudumaNamba

@MarthaKarua @OkiyaOmtatah Counsel @MarthaKarua says she wants to emphasize the gravity of the issue of unilateral communication to the court

She then says even with the advice of the court to the 6th respondent that they must serve all parties, the 1st petitioner was only served yesterday Dec 17th

@MarthaKarua @OkiyaOmtatah Counsel for 2nd respondent: in submission the petitioners repeatedly raised that the fact that a Data Protection Act was pending was an omission that the existing framework was inadequate

Counsel Regeru objects

The presiding judge says Counsel Karua can continue

#HudumaNamba

@MarthaKarua @OkiyaOmtatah That is why petitioners do not understand why counsel for the 6th respondent needed to bring the court's attention to the Act, since they maintained all along the existing framework was adequate

However, it is fine for court to take judicial notice of the Data Protection Act

@MarthaKarua @OkiyaOmtatah Counsel @waikwawanyoike for the 1st petitioner (@NubianRights) states there is no problem with the court taking judicial notice of the #DataProtection Act under section 60 of the Evidence Act

On petition 454 of 2019 on the Data Protection Act, he is willing to read the orders

@MarthaKarua @OkiyaOmtatah @waikwawanyoike He says before the court there is no pleading from any party related to the Data Protection Act; there are no grounds advanced by any party about the applicability of the Data Protection Act, nor in the letter nor today by the respondents

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike Our position is the court is to determine the violations that could occur at the filing of the petition and the continuing violations thereon - including the manner the system is designed (affecting privacy & discrimination)

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike And other issues - the manner in which the Misc. Amendments Act was passed and historical discrimination - that are outside the realm of data protection

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike The Data Protection Act cannot be applied retroactively, so beyond the court taking notice of the Act there is little that can be done in relation to this law

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike Counsel @waikwawanyoike also raises the treatment of the 1st petitioner by not serving the letter until yesterday - with no indication they tried to serve earlier

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike Counsel @yussufugas (also for 1st petitioner @NubianRights) supports the statements of the two previous counsel

He states the Nubian community has raised serious issues about historical discrimination, exclusion, and access to services

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas Looking at the letter served yesterday, my clients do not see any remedy for their concerns

The judges ask - the letter?

Counsel clarifies in the entire Data Protection Act

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas Counsel for 1st petitioners continues to say there is no applicability of the Act to the data that was already collected under #NIIMS and anything that might have been done with that data

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas We came to court, we had extensive hearings, witnesses were cross-examined, evidence was taken

We challenged the constitutionality of the amendments done to the Registration of Persons Act to create the #NIIMS system

We never challenged the Data Protection Act

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas How the Data Protection Act cures the constitutional infirmities of the amendments of the Registration of Persons Act has not been submitted on, says @yussufugas

Counsel Regeru objects that unless the court gives directions to submit, it's inappropriate to discuss the Act

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas Counsel Bashir indicates he has associated himself with the submissions of the other counsel that the court should take judicial notice of the Act, together with the statements he made about its applicability

Counsel has finished his submissions

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas Counsel for @lawsocietykenya associates herself with the submissions of @MarthaKarua, @waikwawanyoike, and @yussufugas and wishes to add one or two points

She states this is a public interest matter, which requires the court to avail all the parties an opportunity to be heard

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya The court did so; thereafter, this honorable court could render its decision

Counsel asks the court, by the end of today's proceedings, to issue the date for the judgement

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya Counsel states the Data Protection Act became operational on 25th November 2019 and is not retrospective

The court has stated it has taken judicial notice of the Act

LSK would like to remind the court of its view on the application of that law

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya The 5th Interested Party LSK, along with other stakeholders, have on the passing of that Act held consultative forums wherein we have looked at various sections of that Act to see how suitable it is

Petition 454 of 2019 is before the court, as noted by counsel on both sides

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya The LSK has a question on the outcome that the 6th respondent seeks in bringing attention to the Data Protection Act but also highlighting the ongoing challenge of the Act

LSK is anxious for the judgement in this case and prays the court sets the date

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya Counsel Julie Soweto will speak on behalf of the 6th and 3rd interested parties (@InformAction_KE & @MUHURIkenya)

She states the court can take judicial notice of the Data Protection Act, and no more

It cannot be applied to the proceedings

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya At the time the court retired and reserved its judgement, the Act was not in existance

The decision of the court can only be based on the state of the law and the questions before the court and the laws applicable at the time

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya The second issue counsel for 6th & 3rd interested parties wishes to raise is the manner the counsel for the 6th respondent approached the court

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya The petitioners are not fighting the court

But the question of perception is important

The complaint raised about some parties being left out is one that goes to a perception on the administration of justice

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya Some of the complaints that were the subject of the petitions touched on how laws are passed, procedure, perception...

So when one party acts in a manner that seems to perpetuate the very complaint that is before the court, we are justified to complain & raise a red flag

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya We ask the court to consider what is now being said was an inadvertent, innocent mistake

As the 6th interested party, it was not until we received communication from the court inviting us to make submissions on the Data Protection Act that we knew any communication to the court

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya We were surprised by that turn of events

Counsel for 6th interested party @InformAction_KE also agrees with counsel for 5th interested party LSK that we seek the court to issue the date for judgement on this matter

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya Counsel Regeru for the respondents is now speaking

He refers to Counsel @waikwawanyoike's statement there was no pleading by any party on the #DataProtection Act

He said in the affidavit from PS ICT Jerome Ochieng in Feb 2019 included the Bill

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya The counsel for the 6th respondent was merely providing an update the Act had passed

Counsel Regeru refers to the statement of Counsel for 6th interested party that the court can take notice of the #DPA and nothing more

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya Counsel Regeru says if the Act impacts any matter in the case, the court has every right to look at it and apply it accordingly

The data of 38 million Kenyans has been collected, but the Interim Orders of this court restrain govt from using that data in any way

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya Issues of utilization of data was specifically preserved by the court, pending judgement

Now that the #DataProtection Act has come into being, effective Nov 25, 2019, before the court writes its judgement, naturally as they direct data to be used or not they would apply the Act

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya Counsel Regeru says the letter from the 6th respondent was "completely harmless" - it merely provided a copy of the Act and asked court to give directions

Nowhere did the 6th respondent apply for a re-opening of the hearing or receipt of additional evidence

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya The court is perfectly entitled to take judicial notice of the Act and apply it

Counsel Regeru has concluded his remarks

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya Counsel for the 6th respondent associates himself with the submissions made by Counsel Regeru

He says the Data Protection Act comes into operation immediately

He has no further submissions

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya The presiding judge says since they are hearing the two sets of petitions back to back, they would like to hear from parties in Petition 163 of 2019 (Okiya Omtatah Okoiti & 4 others v Attorney General & 5 others) before giving directions

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya Counsel for @katibainstitute says their petition is about the use of omnibus bill to make substantive amendments, the exclusion of the Senate, and public participation

It's purely about the process leading to the amendments

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute The Data Protection Act has very little, if not nothing, to do with that petition

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute Counsel @ochieljd also raises that on Nov 26th the Supreme Court issued a decision related to public participation

The presiding judge says today is on the #DataProtection Act

Counsel says they have the duty to raise the development w/the court; they have filed & served it

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd Counsel @OkiyaOmtatah is now speaking

The petitioners in petition no. 163 received the letter yesterday about what is happening today

He is wondering that the court was moved by a letter

The presiding judge says they were moved on their own

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd Counsel @OkiyaOmtatah feels the proceedings have been re-opened

He says a lot of other things have happened outside this court

Just a few days ago, Justice Korir gave orders related to the Child Welfare Society, one of the parties of the case

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd The presiding judge asks Counsel to confine himself to the #DataProtection Act, which is what we are here for today

Counsel says he has filed a petition challenging that Act, petition no. 454 of 2019, including the role of the Senate

#dataprivacy #NIIMS

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd Counsel @OkiyaOmtatah feels if consideration of the Data Protection Act is taken into account in a situation where he has already challenged the Act

And if the court has to take notice of that Act, then the parties must make substantive submissions on sections of that Act

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd He is then not sure what would happen to that other case

He does not wish to make submissions in this case, but feels it would be in order

His concern is the National Assembly wrote to the court & he was only served yesterday

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd Presiding judge says she is willing to give counsel time to think through how he wishes to proceed, given he was only served yesterday

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd Counsel responds he will leave it to the court

The judge says their view would be to give him time, given he was served late

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd The court is now confirming whether parties in petition 163 were served with the recent Supreme Court ruling related to public participation

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd Counsel Regeru is now responding to the counsel for @katibainstitute

Mr. Regeru feels the court should take judicial notice of the Data Protection Act and apply it fully to the extent permitted by the law

He notes there was no objection from the other side on that

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd On the authority raised, Counsel Regeru feels it should be struck out

Public participation is an issue in petition 163, it was explored fully, all sides produced numerous authorities, so a new one cannot come in at this point

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd Counsel Regeru also states he has been given an incomplete copy of the judgement that the other side wishes to include as an authority

He says the copy is missing multiple pages

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd Other counsels for respondents in petition 163 associate themselves with Mr. Regeru

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd Counsel @ochieljd will now respond

Public participation is live in this petition (no. 163 of 2019), yet the Data Protection Act does not appear anywhere

It is disingenuous that the respondents behave as if only they have the right to tell the court @ new Act or judgement

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd The judges will adjourn for about one hour to consider the submissions they have received in order to give directions

Court will reconvene at 2:30pm

#HudumaNamba #NIIMS

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd Proceedings are now resuming for today's hearing on #HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd Following appearances of the legal teams, Counsel @OkiyaOmtatah is saying that he has consulted his fellow petitioners for Petition No. 163 of 2019 and they do not wish to re-open the case for submissions on the Data Protection Act

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd The presiding judge will now give a summary of the directions they are making today

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd The judge says in the interest of justice, if @OkiyaOmtatah wishes to make submissions on the Data Protection Act he may do so, but limited to issues of Petition 163; the issue of constitutionality of the Data Protection Act is not before this court

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd On the authority - the judges found the authority is indeed incomplete and can not be relied on

But the court says they are bound by any decisions of the Supreme Court that may be relevant to the issues, including the one brought to the attention of the court by @ochieljd

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd For Petition 163, the judgement will be on January 30, 2020 at 3pm

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd In Petitions 56, 58, & 59 there was consensus on the way forward - the court to take judicial notice of the DPA and set a new date for the judgement

#HudumaNamba

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd On the issue raised about unilateral communication to the court, the court does not find reason to make adverse inferences

The court was not persuaded that there was any intentional misconduct

@MarthaKarua @OkiyaOmtatah @waikwawanyoike @yussufugas @lawsocietykenya @InformAction_KE @MUHURIkenya @katibainstitute @ochieljd The judgement for the #HudumaNamba case is reserved for January 30, 2020 at 3pm