R.M v ATTORNEY GENERAL & 4 others [2010] eKLR of unsound mind. We fail to understand how these provisions have resulted in violation of the petitioner’s rights. The petitioner does not allege that he is a woman, nor has any allegation been made that he suffers from any mental incapacity. 154. As regards The Prison Rules, Rule 25 provides for regular medical examination of all prisoners, whilst Rule 103 provides that prisoners sentenced to death be confined separately from other prisoners and allowed special facilities. Rule 104 provides for restrictions of access to prisoners under sentence of death. Again, although these rules are applicable to the petitioner, we fail to understand how the rights of the petitioner have been violated. The rules provide for general provisions which are applicable to all affected prisoners. They are neither discriminatory nor do they negate the constitutional rights of the prisoners whose right to liberty has already been compromised by the conviction and committal to jail. We see no reason why an exception should be made in the case of the petitioner. 155. It would appear to us that the petitioner’s main complaint with regard to his incarceration at Kamiti Maximum Prison is the fact that he was put in the male section of the prison. It was argued that the prison Act provides for male and female prisoners to be put in separate prisons, and that the petitioner as an intersex person ought to have been put in a separate prison other than the male prison. The petitioner should also be taken care of by intersex persons or people who have training in that area. Section 36 of The Prisons Act, provides as follows: “Male and female prisoners shall be confined in separate prisons or in separate parts of the same prison in such manner as to prevent, as far as practicable their seeing or conversing or holding any communication with each other.” 156. It is evident that because of his ambiguous genitalia, and the fact that the petitioner has held himself out as a man in name and clothing, the petitioner would not fit in a prison for female prisoners. In appreciation of the difficulty surrounding the petitioner’s ambiguous sex status, the court issued an order on 6th November, 2007 for the petitioner to be accorded exclusive or separate accommodation from the male convicts. The petitioner’s situation is unique, and was not anticipated by the Legislature. Moreover, there is no evidence that there are any prison officers who are intersex persons or have training in that area. Thus it would not be practical to expect a prison facility for the petitioner alone. Further, a perusal of Section 36 of the Prisons Act reveals that prisoners of different gender can still be held in separate parts of the same prison. This is what the court order of 6th November, 2007 provided for. 157. The petitioner’s situation is akin to that encountered in the United States case of The Estate of Miki Ann Dimarco (supra), where Dimarco, an intersex person was committed to serve sentence in Wyoming Women’s Correctional Facility because she held herself out as a woman. Upon discovery of her intersex status, Dimarco had to be placed in solitary confinement in a separate part of the prison during the period of her sentence. The United States Court of Appeal, Tenth Circuit, reversed the District Court’s finding that Dimarco’s rights were violated as a result of her solitary confinement. The Court of Appeal held inter alia that Wyoming provided adequate procedural protection to justify its placement decision and that the initial placement decision was appropriate given Dimarco’s unique background. Dimarco’s confinement was necessary due to the legitimate reason of potential and substantial risk of serious harm either to the female inmates or to Dimarco. Therefore, the Court of Appeal concluded Dimarco did not have a protected liberty interest that Wyoming violated. Likewise, in this case, the petitioner’s confinement in separate accommodation is necessary for the petitioner’s own good. It is interesting that counsel for the petitioner unwittingly relied on the judgment of the District Judge Clarence Brimmer which was overturned by the Court of Appeal. The petitioner’s confinement in http://www.kenyalaw.org - Page 40/45