Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] KLR

Parties (including notable third parties)

Petitioners: Nubian Rights Forum, Kenya Human Rights Commission, Kenya National Commission on Human Rights; Respondents: Attorney General, Cabinet Secretary, Ministry of Interior & Co-ordination of National Government, The Principal Secretary, Ministry of Interior Co-ordination of National Government, Director, National Registration Bureau, Cabinet Secretary, Ministry of Information, Communication & Technology, Speaker, National Assembly, Kenya Law Reform Commission; Interested Parties: Child Welfare Society, Ajibika Society, Muslims for Human Rights Initiative, Law Society of Kenya, Inform Action, Bunge La Mwananchi, International Policy Group, Terror Victims Support Initiative

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Summary of Facts

The case concerned the Kenyan National Assembly’s enactment of the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018.  That statute was an ‘omnibus Act’ which introduced amendments to a number of other laws, in particular the Registration of Persons Act (Cap 107 of the Laws of Kenya).  The effect of the amendments was to establish the National Integrated Identity Management System (‘NIIMS’) in Kenya.

The Kenyan Government intended the NIIMS to be a centralised digital population register to serve as the ‘single source of truth’ for verification of identity and access to government services.  The NIIMS was initially designed to include personal and biometric data (including DNA and GPS coordinates) collected from all citizens and registered foreigners in Kenya.

The Nubian Rights Forum, Kenya Human Rights Commission and Kenya National Commission on Human Rights (together, the ‘Petitioners’), and several other interested parties, challenged the constitutionality of the NIIMS and its enabling amendments in the High Court of Kenya.  In summary, their consolidated petition was that: first, the way in which the NIIMS reforms were passed by way of an omnibus Act was unconstitutional; secondly, the NIIMS violated, or threatened to violate, rights to privacy under Article 31 of the Kenyan Constitution; and thirdly, the NIIMS violated, or threatened to violate, rights to equality and freedom from discrimination under Article 27 of the Kenyan Constitution in respect of the Nubian community and other marginalised groups, including stateless persons, living in Kenya.

The Petitioners’ claim was opposed by a number of members of the Kenyan Government and Kenyan government agencies (together, the ‘Respondents’) and several other interested parties.

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Legal Arguments

Legal Arguments by the Petitioners

The Petitioners argued that the NIIMS reforms had not been passed by the National Assembly in accordance with the Kenyan Constitution, including because: (1) there was inadequate public participation; (2) the reforms were implemented by way of a miscellaneous amendment statute (which was inappropriate for substantive reforms); and (3) the omnibus Act had not received Senate approval (being a requirement for legislation concerning the counties of Kenya).

The Petitioners also argued that the proposed data collection as part of the NIIMS was intrusive, unnecessary and infringed rights to privacy under the Kenyan Constitution.  The Petitioners argued that there were inadequate legal and data protections frameworks in place for the type of personal information proposed to be collected in the NIIMS.

On the issue of equality and non-discrimination, the Petitioners argued that the introduction of the NIIMS would perpetuate discrimination against members of the Nubian community and other marginalised groups, including stateless persons and refugees.  This was said to be due to the difficulties already experienced by those groups in obtaining the identity and other documentation which would be required to enrol in the NIIMS. A particular difficulty that was identified was the vetting process that was said to be applied disproportionately to certain groups such as the Nubians and those of Asian, Somali and Muslim heritage when applying for identity documents.

The Petitioners argued that the NIIMS reforms did not address those difficulties under the existing, simpler system and would only entrench and exacerbate them in a more complex, digital system.  Exclusion from the NIIMS would, the Petitioners argued, lead to marginalised groups being denied vital government services.

Further, the Petitioners argued that the collection of sensitive personal data could be used for the profiling and covert surveillance of marginalised groups in contravention of the anti-discrimination provisions under the Kenyan Constitution.

Legal Arguments by the Respondents

The Respondents argued that the Petitioners had failed to establish any deficiency in the legislative process leading to the enactment of the omnibus Act, which enjoyed a presumption of constitutionality. The Respondents argued that housing the NIIMS reforms in a miscellaneous amendment statute was justified and that the NIIMS (which related to national issues including citizenship and immigration) did not require Senate approval as contended by the Petitioners.

The Respondents argued that the right to privacy was not absolute.  The Respondents emphasised the benefits of having a centralised, digital register, including that it would assist in combatting child trafficking.

The Respondents argued that the Petitioners’ claim in relation to the Nubians experiencing discrimination in the process of obtaining identity documents lacked a factual and legal basis.  The Respondents claimed that the Petitioners’ case was based on a misunderstanding of the NIIMS.  The Respondents highlighted that the NIIMS would be based upon the pre-existing framework of laws on citizenship and registration, which were not the subject of challenge in the present proceedings.

Outcome

The Petitioners’ case was partially successful.

On the Petitioners’ challenge to the legislative process leading to the enactment of the omnibus Act, the Court held that the public was given sufficient time to participate. The Court otherwise noted that it was not the place of the courts to dictate the procedure to be used by the parliament in enacting legislation, provided it was not established that the procedure breached the Constitution or laws of Kenya.

On the issue of privacy, the Court held that while the collection of biometric data was necessary for the NIIMS and in the public interest, the legislative framework for the collection of such data was inadequate. In particular, the Court held that in the absence of appropriate empowering legislation, the amendments which permitted collection of DNA and GPS coordinates were in violation of the Constitution and declared such amendments null and void.

On the issue of equality and non-discrimination, the Court found there was no evidence that the amendments differentiated between the Nubian community and other marginalised groups as compared with other Kenyans.  The Court found that there was a need for a clear regulatory framework to address the risk that persons without access to identity documents or with poor biometrics would be excluded from the NIIMS.  However, the Court did not find the risk of exclusion itself to be a sufficient reason to hold the NIIMS unconstitutional.

Under the NIIMS reforms, the existing laws which provided for the issuance of identity documents to foreign nationals, refugees and stateless persons would continue to operate. To the extent there were claimed deficiencies in relation to those existing laws (including vetting procedures), the Court held that such claims could not properly be brought in the present proceedings relating to the NIIMS.

The Court held that the Kenyan Government was at liberty to proceed with the implementation of the NIIMS on the condition that the parliament first enact a regulatory framework in relation to the NIIMS (including the collection of data) that complied with the constitutional requirements addressed in the Court’s judgment.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Constitution of Kenya 2010	Articles 27 and 31
Domestic	Registration of Persons Act (Cap 107 of the Laws of Kenya)
Domestic	Statute Law (Miscellaneous Amendments) Act No. 18 of 2018

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Grace Mutung’u and Isaac Rutenberg, ‘Digital ID and Risk of Statelessness’ (2020) 2(2) Statelessness & Citizenship Review 348

• The article examines Kenya’s digital ID system, NIIMS, and its legal, social, and human rights implications, focusing particularly on the risks of exclusion and statelessness for marginalised communities. The case of Nubian Rights Forum & 2 others v Attorney General & 6 others is central to this discussion, as it challenged the design and implementation of NIIMS on grounds including lack of privacy protections, inadequate public participation, and the risk of disenfranchising people without primary identity documents.
• The High Court’s decision allowed NIIMS to proceed only if a comprehensive regulatory framework was enacted, but concerns remained unresolved—especially for groups like the Nubians, who have historically faced difficulties obtaining documentation due to unclear and discriminatory registration processes. The article highlights that the NIIMS system, by requiring existing documentation for registration, perpetuates exclusion and statelessness for such communities.
• The article also describes the passage of the significant NIIMS reforms by way of an omnibus bill, which received minimal public input and parliamentary debate, as ‘woefully inadequate’ (page 352).