R.M. v Attorney General, et al.

[2010] eKLR; Petition 705 of 2007
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RM was born a hermaphrodite/intersexual and was raised as male. His birth was not registered at the time, which caused RM difficulties later in life as he was not in consequence recognised by the State for employment, marriage or other legal reasons. RM was later convicted of an offence of robbery with violence and sentenced to death. While awaiting trial on remand, the Magistrate’s Court, recognising that RM was a hermaphrodite, ordered that RM should be detained in a police station in solitary confinement away from other prisoners. Upon conviction, RM was transferred to a maximum security prison where RM was placed in the general male death row population and suffered inhuman and degrading treatment at the hands of prison officials.

RM petitioned the High Court to review RM’s case under s 84 of the Constitution as read with Rules 11 and 12 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of the Fundamental Rights & Freedoms of the Individual) High Court Practice and Procedure Rules and sought to quash the conviction and claim damages on the grounds that RM had, firstly, suffered inhuman and degrading punishment while in custody at the hands of State officials and, secondly, had suffered discrimination because the Constitution and State failed to recognise or provide facilities for hermaphrodites and, as a consequence, his life and the lives of other hermaphrodites had been detrimentally affected.

[Adapted from INTERIGHTS summary, with permission]

The Court granted RM’s claim for damages for inhuman and degrading treatment at the hands of the State but rejecting all other claims. It held that:

(1) The Constitution allows for individuals to bring representative suits in respect of a breach or threatened breach of fundamental rights and freedoms of a body of persons to which the individual belongs or has an interest (Lemeiguran (as above) applied). The onus is on the petitioner to prove that there is a definite number of persons in respect of whom a representative suit can be brought and that the suit is a public interest litigation such as to justify bringing the representative suit in the first instance.

(2) The failure to recognise the position of hermaphrodites in the Births and Deaths Act or the Constitution was not in breach of either s 70 or s 82 of the Constitution, which respectively provides for the general protection of fundamental rights and freedoms as well as prohibiting the State from passing discriminatory legislation, as the sex of a child is fixed as either male or female at birth even if it is born with intersex characteristics (Corbett v Corbett[1970] 2 WLR 1306 (UK HC), Re Kevin (2001) FamCA (Australia CA) considered). It is not for the court to create a third category of gender. Thus, there were no legal barriers to RM’s registration under the Births and Deaths Act either at the time of the birth or subsequently; RM’s rights are adequately protected by the law and RM has suffered no discrimination or lack of legal recognition as a result thereof with regard to education, housing, marriage or exercise of democratic rights as claimed.

(3) In failing to provide medical resources and facilities to facilitate gender reassignment surgery, the Government did not breach the rights of the petitioner as it is entitled to consider and prioritise objective needs due to the scarcity of resources.

(4) Kenyan society is predominantly a traditional African society in terms of social, moral and religious values and has not reached the stage where such values involving matters of sexuality can be rationalised or compromised through science (Corbett v Corbett (above) and Christine Goodwin v the United Kingdom, Application No. 28957/95 considered). Combating social stigmas, such as those relating to hermaphrodites, takes time and effort, as can be seen from the example of the UK and the cases quoted above. Such rationalisation can only be achieved through deliberate action on the part of the legislature, not the courts, taking into account the prevailing circumstances and the need for such legislation (Bellinger v Bellinger (2002) WLR 411 (UK HL) and Christine Goodwin v the United Kingdom (above)).

(5) RM having been remanded in custody in solitary confinement at Kitui Police Station was lawful and not a breach of his rights as the order was made due to RM’s intersex status and the fact that there was nowhere else suitable available to hold him during his criminal trial. Even if RM’s rights had been breached as a result of the order, such violation would give rise to an action in damages and not a vitiation of the criminal trial (Julius Kamau Mbugua v Republic (2010) eKLR (Kenya HC) applied).

(6) RM having been placed in the general male death row population at Kamiti Maximum Security Prison was not a violation of his rights, the Prisons Act or Prisons Rules, as the court had issued an order that, although RM was to be placed in the general male death row population, he was to be accorded exclusive or separate accommodation from the general populace (Dimarco v Wyoming Department of Corrections 2004 WL 307421 considered where solitary confinement of an intersex person was justified by the unique circumstances and also that it was deemed that solitary confinement was for the plaintiff’s own good).

(7) Although the Prison Rules provide for searching of prisoners in custody, in failing to take into account RM’s unique circumstances the searches took on the characteristics of inhuman and degrading treatment as prohibited by s 74 of the Constitution (Samwel Rukenya Mburu v Castle Breweries, Kenya, Nairobi HCC 1119 of 2003 applied). As a result, RM was awarded damages pursuant to s 84 of the Constitution.

[Adapted from INTERIGHTS summary, with permission]

“117. Thus, there is no empirical data or indeed any other facts before us upon which we can conclude that there is a body of persons known as intersex persons. Nor, is there any information upon which this court can conclude that the issues raised with regard to intersex persons, is something in which the society as a whole has an interest that warrants recognition. It is true that the intersex birth is an unusual occurrence which attracts public curiosity. However, such public curiosity can only graduate to public interest with empirical data confirming that the prevalence of intersex birth in this country is of such magnitude as to call for government regulation or intervention.

118. Therefore, we are not persuaded that there is a definite number of intersex persons in Kenya as to form a class or body of persons in respect of whose interest the petitioner can bring a representative suit, nor are we persuaded that the suit before us is a public interest litigation such as to justify the petitioner bringing a representative suit. We find that the petitioner’s condition is a rare phenomenon in this country. His case must be treated as an isolated case in respect of which we are concerned with the rights of the particular individual before us. Consequently, the reference in the amended petition to other intersexuals and violation of rights of those other intersexuals shall be struck out.”

“128. We are satisfied that in the case of the petitioner his ambiguous genitalia did not negate the fact that his biological sexual constitution had already been fixed at birth. In requesting for the particulars of the sex of the petitioner as either male or female, the Births and Deaths Registration Act did not therefore exclude the petitioner as an intersex person, because the petitioner in fact falls within one of the two defined categories. The challenge was to determine at birth which side of the divide the petitioner fell particularly, for purposes of registration of the birth i.e. whether male or female.”

“148. The Kenyan society is predominantly a traditional African society in terms of social, moral and religious values. We have not reached the stage where such values involving matters of sexuality can be rationalized or compromised through science. In any case, rationalization of such values can only be done through deliberate action on the part of the Legislature taking into account the prevailing circumstances and the need for such legislation.”

“166. In Samwel Rukenya Mburu vs Castle Breweries, Nairobi HCC 1119 of 2003, Justice Visram held that:

“Prohibition against torture, cruel or inhuman and degrading treatment implies that an “action is barbarous, brutal or cruel” while degrading punishment is “that which brings a person dishonour or contempt.”

167. We agree with that definition. We find that the strip searches conducted by the prison wardens exposed the petitioner to inhuman and or degrading treatment because of the petitioner’s peculiar circumstances. Exposing the petitioner’s ambiguous genitalia in the presence of other persons was cruel and brought ridicule and contempt to the petitioner. More so because in the absence of conclusive medical evidence, it was not clear whether petitioner was being searched by officers of the same sex as required by Prison Rule 36(2).

168. We do appreciate that conducting searches of prisoners in prison is a very important exercise. However, such searches must be done with utmost decorum and respect for human dignity. Where necessary, as is the case with the petitioner, such invasive body searches should be done by use of modern technology such as is employed in some airports. We do note that the right to protection against inhuman and degrading treatment is an absolute right, only limited in one instance i.e. where the act complained of is the infliction of a punishment authorized by law. Searches of prisoners, though authorized by law, is not a punishment and cannot therefore limit the petitioner’s constitutional right to protection against inhuman and degrading treatment. We come to the conclusion that the petitioner’s right to protection against inhuman and degrading treatment as provided under Section 74 of the Constitution was violated by prison officials.”

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