R.M v ATTORNEY GENERAL & 4 others [2010] eKLR male and female genital organs. Prison officers being in a dilemma as to whether to remand the petitioner in a female cell or male cell, referred the matter to the Kitui Magistrate’s Court. A magistrate, Evans Makori ordered that the petitioner be taken to Kitui District Hospital for verification of his gender. The doctor’s report confirmed that the petitioner had ambiguous genitalia. An order was therefore made for the petitioner to be remanded at Kitui Police Station during the pendency of his trial. 7. The petitioner was subsequently tried, convicted and sentenced to death for robbery with violence. The petitioner was committed to Kamiti Maximum Prison for male death row convicts. He was again examined by Prison Medical Officers who confirmed that he was a hermaphrodite. Contrary to The Prisons Act, the petitioner was made to share cells, beddings and sanitary facilities with male inmates, and was exposed to constant abuse, mockery, ridicule and inhuman treatment. He was also sexually molested by curious male inmates. The petitioner claimed that his dignity as a human being and his fundamental rights against inhuman treatment, discrimination on grounds of sex, and rights to freedom of association, freedom of movement, right to fair hearing and protection under the law were violated. He therefore filed this petition seeking appropriate redress. RESPONSES TO THE PETITION 8. It is only the 1st to 5th respondents, 3rd amicus curiae, 1st interested party, and the 5th interested party, who filed responses to the petition. We shall start with the responses filed by 3rd amicus curiae which were actually in support of the petition. 9. The 3rd amicus curiae filed 4 affidavits in support of the petition. These were affidavits sworn by the petitioner’s mother J. K, petitioner’s brother J.M.M, the petitioner’s grandfather B.K.K, and the petitioner’s grandmother D.S. The gist of the affidavits is that the petitioner was born with both male and female genitalia. This was a closely guarded secret kept by the mother and the grandmother who was the midwife during the petitioner’s birth. The petitioner was given a male name because of his physical appearance. The petitioner dropped out of school at Class 3. The petitioner’s peers laughed at him because he developed breasts and this caused the petitioner to lead a solitary life. Later the petitioner married one R, but the marriage only lasted for about a month or so. 10. The 1st interested party filed an affidavit sworn by Jedidah Wakonyo Waruhiu its Executive Director. The gist of the affidavit was that the current male only facilities at the Kamiti Maximum Prison, are not appropriate to cater for intersex persons. Despite the order issued by the High Court that the petitioner be accorded exclusive accommodation, the prison has failed to comply with the said orders. Consequently, the petitioner has continued to suffer sexual harassment. In particular the petitioner had reported to prison paralegal staff of sexual harassment meted out to him on the 9th April, 2009, in respect of which no action was taken. The prison paralegals had also reported of two occasions when the petitioner was asked to strip and spread his legs causing inmates to mock and laugh at the petitioner. 11. The 1st to 5th respondents who were all represented by the Attorney General objected to the petition through two replying affidavits. The 1st affidavit was sworn by a State Counsel Victor Mule on the 15th October, 2009. The 2nd affidavit was sworn by a prison warder one Julius Kaliakamur on 19th May, 2010. Briefly the allegations that the petitioner has been subjected to psychological suffering and physical abuse, inhuman or degrading treatment at Kamiti Maximum Prison was denied. It was admitted that The Prisons Act (Cap 90) was silent on the provision of separate prison facilities for hermaphrodites. However, it was maintained that no violation of the petitioner’s rights was caused by this, as administrative arrangements could be made for special accommodation. It was denied that the petitioner was exposed to any discrimination on the grounds of sex, or that the petitioner suffers lack of http://www.kenyalaw.org - Page 6/45