We expect two judgements today - one in consolidated petitions 56, 58, & 59 of 2019 challenging the amendments that created #NIIMS & one in petition 163 of 2019 challenging the entire Statute Law Miscellaneous Amendments Act
#HudumaNamba #NIIMS
#HudumaNamba
They will then deliver summaries of the key findings and orders
The judgments run to 500 pages
#HudumaNamba
The judges will now start with delivery of their summary of findings in consolidated petitions 56, 58, & 59
#HudumaNamba
President gave assent Dec 31, 2019
Into effect in January 2019
Amendments changed definitions including biometrics, GPS
Introduced new section 9(a) that establishes #NIIMS that is intended to be a single source of personal information on al Kenyans & foreign residents
The petitions were consolidated by the court
Respondents = AG, CS Ministry of Interior, PS Ministry of Interior, Director NRB, CS Ministry of ICT, Speaker National Assembly, & KLRC
1. Whether legislative process leading to Misc. Amendments Act was constitutional, including sub-issues:
-public participation
-procedural & appropriate
-if it affected counties
-if personal info collected was intrusive, excessive, disproportionate
-if children's' right to privacy was violated
-if there is sufficient data protection frameworks
-if reasonable to limit privacy
-All parties agreed that public participation is key for governance
-All parties agreed that in May 2018 notices were in newspapers; govt thinks it's sufficient & petitioners don't
Issue is therefore sufficiency
Various actors can be responsible for public participation, not only Parliament
There are roles to be played by others
The same was published in the Kenya Gazette
6th respondent also annexed the advertisement informing of the publication of the bill & invited members of the public to submit on the bill
Reg of Persons Act was shown to be sent to National Security Committee, w/minutes attached
Our view is that time was available for public participation
Public could also submit through MPs
Not correct to state public only had the 7 days in the advertisement
Upon expiry of the 7 days, doors not closed for participation b/c opportunities in committee hearings
Finding is that sufficient time was availed for public participation
We find there was sufficient public participation in the circumstances in this case
Risk of excluding public is even more if short period for submitting views was provided
These views in LSK vs. AG case (2016)
Key word here is "ought"
Amendment related to public funds will draw more attention
If there is evidence that principle of public participation was obliged with, court cannot rule against law just because omnibus bill was used
But if the process in line with Constitution - including whether there was sufficient public participation
Respondents opposed that there was a role for the Senate
Supreme Court has dealt with this issue extensively
However, we do not think the jurisdiction of the Senate extends to each and every bill considered by National Assembly
Hard to think of any legislation that does not touch on counties
Finding that impugned amendments did not require approval of Senate
That is not to say the bill shouldn't have been subjected to process set out by Supreme Court
Court cited many authorities from in and outside of Kenya (elaborated in written judgment) and noted rights of control over personal information
Also challenging in particular was requirement to provide GPS coordinates
But said that biometric data was already being collected under the existing system, and is allowed under the Act as registrar can collect other attributes about a person
& said DNA & GPS was not collected
Judges first address legitimacy of privacy concerns
Biometic data by its very nature is personal information
Therefore, the court noted that the data collected by #NIIMS evidenced by the data capture form clearly falls into above definition of personal data
#DataProtection Act defines sensitive data - includes genetic data, biometric data, names of children/spouses, sex, etc.
Considered sensitive because of the higher impact of exposure of such data
Respondents showed the data capture form and said "mandatory" was removed from the form
Biometric and GPS data are personal, sensitive, & intrusive data
Court prevented use of data while case was pending for this reason
Thereforc, outstanding question - whether requirement & collection of biometric data was necessary
Witnesses said authentication of fingerprints could lead to false conclusions because it relies on probabilities
Respondents also say biometric data needed to establish national population register as single source of truth
They want to clarify -
Utility of biometric data is to identify, & is therefore necessary for identification purposes
Unlike other biometrics, DNA is comparison and does not allow for identification to be done in real-time and requires expertise
Utility of GPS is even less evident
People may lose biometric characteristic over time
Different biometric characteristics can be combined
Court persuaded by evidence of witnesses of respondents
Includes to establish population register, assign a unique number, etc.
Thus, principally an identification system
It can be done centrally or locally
To that extent, biometric data necessary for stated purposes of NIIMS
Respondents say the Act applies to "all" Kenyans; and that the system would play role in combating trafficking of children
Petitioners right initially
But amendment to section 9(a) says "all" Kenyans
Question is about anchoring #NIIMS in legislation applying to adults
#HudumaNamba
2nd and 3rd respondents said #NIIMS would override other systems
This is logical because two inconsistent Acts cannot exist
Court finds Section 9(a), being a later amendment, is deemed to have amended section 2
#NIIMS applies to children
Court is of the view that general protections related to privacy are also applicable to children, or even more
Where child cannot give consent, much be authorized by parent or guardian
We note no special provision in impugned amendments
Clearly risk of violation to child's right to privacy
However, Data Protection Act provides for processing of personal data relating to children
Rights at age of minority & majority also missing
Maintain conclusion that data protection is inadequate (for children)
And the Data Protection Act 2019 was enacted after the conclusion of hearings
Judges say judicial notice allows a fact to be introduced into evidence if the root of that fact is so well known
Protection of personal data relies largely on legal framework, including oversight mechanisms
Judges focused on whether the Data Protection Act complies with international standards & best practices
Court opted to be guided by OECD Privacy Principles
#DataProtection #HudumaNamba
To a large extent, the Data Protection Act does provide for the principles cited in the OECD Privacy Principles
The court however noted that the Registration of Persons Act is not one of the Acts to which the Data Protection Act applies - yet processing of personal data means it does
Court finds while there is a legal framework in place, adequate protection of data require operation of that framework
Court will restrict itself to risks related to the right to privacy
In addition, data subject usually has no information or control over use of the biometric
Unauthorized access & use or use for unintended purposes can exist in both systems
#HudumaNamba #NIIMS #DataProtection
For court's purposes, what is relevant is that the same standards should be provided in regulations that govern operation of the system
Respondents said there are no similar regulations
#HudumaNamba #NIIMS #DataProtection
Court notes right to privacy can be limited under Constitution (b/c not listed as those that cannot be limited)
Limitation is permissible if meets criteria in 24(1) of the Constitution
DNA & tracking of GPS could lead to considerable harm to data subjects
#HudumaNamba #NIIMS
That is a provision that limits right to privacy without justification
This applies to any law that relates to collection of personal data
No reasons given by respondents as to lack of regulatory framework
Process of establishing #NIIMS was rushed
Judges have set out conditions on this in judgement as well
The impugned law applies to all persons resident in Kenya whether they are nationals or foreigners
The law does not differentiate, & everyone inc. members of the Nubian, Shona community are entitled to register
Judges set out response
Petitioners established violation of right to equality in that regard
Whatever conditions are for ID cards must be met
Court understands issuance of ID cards & birth certificates will continue under Reg of Persons Act & Births/Deaths Act
Court can only address amendment that establishes #NIIMS
Would require evidence from community on how NIIMS or vetting process violates their rights
He now has a waiting card, after applying most recently in 2018
But main evidence is from one community member
1st petitioner has partnered with government to mobilize applications for documentation
First is gloomy scenario of petitioners that would lead to exclusion of large proportion of population due to failure to register - by choice or inability to reg b/c of lack of identification documents
Could result from lack of documents or lack of biometric data
Including those that lack docs or biometrics
But, not a sufficient reason to declare NIIMS unconsitutional
#HudumaNamba
5(1)(g) & 5(1)(h)(a) requires collection of GPS & DNA - the same sub-sections conflict w/constitution & null/void
3. Each party bear its own costs
The court says they cannot supervise the day to day actions of Parliament
For the amendment to section 24, there was no public participation - and therefore unconstitutional, null & void
1. Declare section 6 of KICA as amended by Misc. Amendments Act is null & void
2. Declare section 24 of Public Finance Mgmt Act as amended is null & void
3. Collection of DNA & GPS intrusive, unnecessary, & to the extent it's not auth. by legis. is unconstitutional
Each party to bear its own costs
The judges have summary for presentation purposes
Judges need to do a final proof-read, hopefully over the weekend, of the main judgement in both cases
Judges will avail the orders sooner
#HudumaNamba #NIIMS
Next steps to be determined...