R.M v ATTORNEY GENERAL & 4 others [2010] eKLR
decisions on behalf of persons incapable of making such decisions, such as minors and people with
disabilities.
48.
Reliance was placed on the Australian case of Re A (1993), Deakins Law Review, Vol. 9,
Issue No. 2 at page 380, wherein the court in regard to a decision to determine gender and give consent
to sex correction surgery, held that the decision to proceed with the proposed treatment did not fall within
the ordinary scope of parental power to consent to medical treatment. The court proceeded to give
consent to the surgery having given due consideration to expert evidence.
49.
It was argued that there was need for appropriate legislation or rules and regulations that
govern parental responsibility and corrective surgeries on intersexual children. The court was urged to
apply the provisions of the Children’s Act 2001 with regard to the principle of the best interests of the
child. An example was given of New South Wales where a Tribunal was formed guided by regulations to
deal with such matters. The court was urged to grant prayers (h) (i) and (j) of the petition, as the current
position of the situation in Kenya contravened Section 82 of the Constitution.
Submissions of the 3rd Interested Party:
50.
The 3rd interested party who was represented before us by Ms Angote also supported the
petition. The gist of the 3rd interested party’s submissions was that the petitioner and other intersexuals,
belong to a rare marginalized group who have suffered discrimination and stigmatization due to lack of
legal recognition. Submissions similar to the ones made by the petitioner and 2nd interested party on the
Constitution and the Birth and Death Registration Act were reiterated. The discrimination suffered by the
petitioner and other intersex persons on matters such as housing and employment were of particular
concern to the 3rd interested party.
51.
It was submitted that the Kenya Government had failed to ensure statutory guarantee
against discrimination, and that it must therefore ensure that intersexuals and or people of other status
are protected. In this regard, it was noted that International Legal Instruments such as the Universal
Declaration of Human Rights, the International Covenant on Social Cultural and Economic Rights, and
the African (Banjul) Charter on Human and People’s Rights all included “other status” as a criterion
upon which discrimination was outlawed.
52.
The Court was urged to find that the State ought to ensure that statutory recognition is
given to the rights of intersex persons in the same way the rights of male and female persons are
recognized. It was submitted that to achieve this equality of status the law must recognize the “other
status” not only in the Constitution but in other statutes as well. It was argued that since Kenya is a
signatory to the various international Conventions which are set out above, Kenya should also enact
laws that are in tandem with the said international instruments.
53.
The court was referred to Articles 2, 7 and 8 of the Universal Declaration of Human Rights
for the proposition that the petitioner and other intersex persons have a right to be accorded equal
protection of the law. In the absence of such recognition, they should seek redress either in the local
courts or internationally. It was maintained that there is no reason why the term “other status” should not
be included in the laws of Kenya. Reference was made to the case of Edward Young vs Australia – 6th
August 2000 Communications No.941/2000, CCPR/C/78/D/941/2000, for the proposition that the term
“other status” was open ended enough to include intersexuals.
54.
The court was urged to display the kind of judicial activism displayed by the Constitutional
Court of Columbia in the Ramos Case (supra) and to find that:-
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