R.M v ATTORNEY GENERAL & 4 others [2010] eKLR contended that the petitioner’s biological architecture is just like any other disability suffered by millions of Kenyans and therefore, there is no good reason why the petitioner should be treated with any exception when it comes to prison facilities. 73. Further, it was submitted that the petitioner’s alleged discrimination while in prison on account of his intersex status, was not supported by any evidence. There was no record of any complaint made by the petitioner to the Prison authorities in accordance with the elaborate procedure for recording complaints at the prison. The allegations of discrimination while in prison were therefore baseless and should be ignored. 74. As regards the roles of parents in determining or assigning gender, and consents for corrective surgery, it was contended that in jurisdictions where that role was clearly defined as in South Africa and New South Wales, it was the legislature who made the legal framework, not the courts. It was argued that in any case, the petitioner was now above 18 years and did not need anybody’s consent to undergo corrective surgery. What was required was for the affected persons to lobby the Legislature to make necessary laws. Finally, it was submitted that the petitioner has no authority to act on behalf of other intersex persons since this is not a representative suit. The court was urged that any orders that may eventually be issued in this case should apply to the petitioner and no one else. Submissions of the 5th Interested Party: 75. The 5th interested party who opposed the petition was represented by Mr. Harrison Kinyanjui. The first major issue raised was the issue of locus. It was submitted that the amended petition had the characteristics of a representative case for a class of people called other intersexuals. Since no order was sought or obtained for the petition to be prosecuted as a representative suit, the petitioner does not have the authority to seek orders on behalf of the class of people called other intersexuals who are not party to this petition. In the absence of such authority it was argued that prayers (g) (h) (i) (j) (k) (l) and (n) challenging the lack of legal recognition for intersex persons in Kenya must fail. It was submitted that the litigation before the court was personal to the petitioner and he cannot purport to litigate on behalf of any other person or persons. 76. It was submitted that the orders sought by the petitioner, and those parties who supported his case particularly in regard to definition of “gender’, were moral or ethical, and the court was not the proper forum to deal with the same. Relying on the English case of Bellinger –Vs- Bellinger (2002) WLR 411, we were cautioned that as Judges we must be careful when considering social issues so as not to substitute our own views. It was maintained that the proper forum to address the petitioner’s concerns was Parliament, and that this court could only address the issues of alleged contravention of the Constitutional fundamental rights of the petitioner and not legislate on the petitioner’s issues or invent legal situation that address the petitioner’s physiological position. 77. With regard to the petitioner’s alleged violation of constitutional rights, it was contended that the petitioner did not invoke the appropriate procedure which is the procedure provided under Legal Notice No.6 of 2006. It was submitted that the hybrid constitutional and judicial review jurisdiction which the petitioner invoked was incompetent. 78. It was pointed out that the issue of people being classified as male or female had a Biblical history as stated in the book of Genesis 1: 26-28. It was maintained that the divine definition of gender had only male and female with no in between gender. It was argued that the petitioner’s quest for the orders he seeks has been weakened by the fact that he seems not to know whether he is a hermaphrodite or an intersexual, and whether he speaks for himself alone or for other intersexuals. If the http://www.kenyalaw.org - Page 20/45