Kenya: Nubian Rights Forum and Others v. Attorney General and Others
Source: Kenya High Court, Nairobi
Consolidated Petitions No. 56, 58 & 59 of 2019
Background (extract from Interim Judgment of 1 April 2019):
1. On 20th November 2018 the National Assembly voted in favour of the enactment into law of the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018. On 31st December 2018, the President of the Republic of Kenya gave his assent to the said Act, and it commenced operation on 18th January 2019. The effect of the Act was inter-alia to amend several provisions of a number of statutes, among them the Registration of Persons Act (Cap 107 Laws of Kenya).
2. The amendments to the Registration of Persons Act establish a National Integrated Information Management System (hereinafter “NIIMS”) that is intended to be a single repository of personal information of all Kenyans as well as foreigners resident in Kenya.
3. The Nubian Rights Forum (the 1st Petitioner), the Kenya Human Rights Commission (the 2nd Petitioner), and the Kenya National Commission on Human Rights (the 3rd Petitioner), are aggrieved with the amendments made to the Registration of Persons Act, which they claim were passed in violation of the Constitution and in bad faith, and pose serious and immediate threats to fundamental rights and freedoms protected under the Bill of Rights. The three Petitioners therefore respectively filed Petitions in this Court, namely Nairobi High Court Petition No 56 of 2019, Nairobi High Court Petition No 58 of 2019 and Nairobi High Court Petition No 59 of 2019, which petitions were subsequently consolidated for hearing by this Bench. The Respondents in the consolidated Petitions are the Honourable Attorney General; the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government; the Permanent Secretary, Ministry of Interior and Co-ordination of National Government; the Director of National Registration; the Cabinet Secretary for Information, Communication and Technology; the Speaker of the National Assembly, and the Kenya Law Reform Commission.
4. A perusal of the Petitions reveals the following key areas of contention:
a. The exclusion and discrimination against the Nubian community whom it is argued do not have national identity cards and/or birth certificates hence are disadvantaged by the uneven playing field as far as implementation of the NIIMS system is concerned;
b. The impugned amendments were introduced and passed without public consultation and /or public participation;
c. There are no adequate and/ or proper safeguards for protection of the data and/or personal information intended for collection under the NIIMS system, hence there is a violation and/or threat of violation of the right to privacy guaranteed under Article 31 of the Constitution;
d. The impugned amendments were published in an omnibus legislation and in a Gazette Notice that was crafted in such a manner as to conceal the amendments from the public. To wit, the impugned amendments were published alongside sixty seven other pieces of legislation, notwithstanding the substantive nature and seriousness of the impugned amendments.
Interim Judgment and Order 1 April 2019: NRF-KHRC-KNCHR-v-AG_Consolidated_Petitions_56-58-59_2019
Court Orders 30 January 2020: NRF & Ors v AG & Ors Court Orders 30Jan2020
Full judgment 30 January 2020: http://kenyalaw.org/caselaw/cases/view/189189/