R.M v ATTORNEY GENERAL & 4 others [2010] eKLR the citizenry and modern trends …… The society is not static.” 37. Reliance was also placed on the case of Njoya & 6 Others –vs- Attorney-General & 3 Others HC Misc Application No. 82 of 2004wherein Ringera J.(as he then was)adopted the view that the constitution was a living instrument with a soul and a consciousness, and embodied certain values and principles, and must be construed broadly, liberally and purposely to give effect to those values and principles. We were urged to find that the responsibility of ensuring that the rights of intersex persons were protected fell squarely upon the State. 38. The court was urged to take the bold step taken by the Constitutional Court in Columbia in the Ramos Case (supra) in which the court held that it was necessary for the Constitutional judge to take necessary measures to protect the fundamental rights of intersex persons, where there were no laws protecting them. It was emphasized that it was important to give intersex persons recognition to ensure that they enjoy equal rights in the eyes of the law, as failure to do so would expose them to untold discriminatory suffering contrary to section 74 of the Constitution. 39. It was maintained that due to the petitioner’s ambiguous gender and overpopulation of inmates in the Prison, the petitioner was exposed to deplorable and inhuman conditions contrary to section 74 of the Constitution. Reference was made to a research document titled “Who Is Responsible for my Pain? A Research on the Prevalence of Torture in Kenya Prisons 2006”. The research carried out by the 1st interested party indicated that there were acts of torture and sexual harassment in prisons by warders as well as inmates. 40. It was contended that the petitioner was vulnerable to abuse due to his unique biological make up. This was because although Rule 36 of The Prisons Rules provides that an inmate in a prison should be subject to searches conducted by a person of the same sex, The Prisons Act was silent on searches on persons with unique biological characteristics like the petitioner. This meant that the petitioner’s right to privacy was violated by the routine searches, and strip searches being done on him by persons not of his gender. It was contended that at times the searches upon the petitioner were not conducted for security purposes but purely to satisfy the curiosity of the prison officers. 41. Thus the petitioner was exposed to abuse by the warders during the searches. As a result, the petitioner was vulnerable to abuse and ridicule by both the prison officers and inmates. In addition, since there were no special toilets or bathrooms for intersex persons, the petitioner was forced to use toilets and bathrooms used by other inmates. All these resulted in torture, cruel, inhuman or degrading treatment to the petitioner contrary to section 74 of the Constitution and Article 50 of the Universal Declaration of Human Rights. 42. Reference was also made to a study carried out by the Sylvia Rivera Law Project (SRLP) 2007 from New York State Prison called “Its War In Here.” It was submitted that the report revealed a corelation between a person being transgender or intersex and crime, which led to the conclusion that discrimination and stigmatization often drive intersex persons into conflict with the law. Ms. Wakonyo also relied on a report called “The Transgender, Gender Variant & Intersex Justice Project” from San Francisco USA, which highlighted human rights problems faced by transgender and intersex persons. These included sexual assault and rape, sexual harassment, physical assault, verbal humiliation, medical neglect and discrimination. 43. On the issue of the solitary confinement of the petitioner, the US case of Dimarco –vs- http://www.kenyalaw.org - Page 13/45