R.M v ATTORNEY GENERAL & 4 others [2010] eKLR 67. The petition was opposed by the 1st, 2nd, 3rd, 4th and 5th respondents, who were all represented by Mr. Obiri, State Counsel on behalf of the Attorney General. Counsel submitted that the petitioner’s complaint in relation to Section 2(b) of the Birth and Deaths Registration Act, Cap 149 is misplaced for two reasons. Firstly, that Section 7(1) of the Births and Deaths Registration Act requires every Registrar to keep a register of births and a register for deaths and to enter therein the particulars of every birth and of every death notified to him. Secondly, it was argued that the petitioner’s complaint that he has been discriminated against on grounds of sex are unfounded, as Section 82 of the Constitution deals with discrimination on grounds of race and not sex. 68. It was submitted that in any event, Section 82 of the Constitution does not even mention the word “sex”. Counsel contended that even if the Births and Deaths Registration Act Cap 149 denied the petitioner recognition, the question is, who should confer legal recognition, is it the judiciary, the legislature or the executive? It was argued that if the petitioner’s complaint is that the word “intersex” is not included in Section 2(b) of the Births and Deaths Registration Act, then it is clear that the petitioner is looking to the wrong authority for a remedy. It was contended that it is only the legislature who can deal with legislative matters and that in the circumstances of this case, Section 2(b) of the Births and Deaths Registration Act is not inconsistent with Section 82 of the Constitution. 69. It was argued that the court cannot direct the legislature on what laws to make or what should be included in any specific law that may be passed by the legislature. Therefore, this court cannot be called upon to make additional provisions on intersex persons under Cap. 149 as the role of the judiciary is merely to interpret laws, not to legislate. With regard to Section 82 of the Constitution, it was submitted that what the petitioner was asking for was for this court to insert the word intersex in the Constitution, which again was a function of the Legislature. It was argued that the petitioner had not demonstrated that he was denied a birth certificate or identity card, as he had not provided any evidence that he applied and was denied the same. 70. With regard to the alleged discrimination the petitioner had not demonstrated that he was discriminated under The Prisons Act (Cap.90). Moreover the complaints of the petitioner were adequately addressed under Rule 65 of the Prison Rules in that as an inmate, he could make written submissions to the President through the Commissioner, or make a complaint to a Visiting Justice. In the absence of any complaints made by the petitioner as required, the petition had no basis. The court was urged to disregard the reports of alleged research findings relied upon in support of the petition, as the reports were tailor made and lacked authenticity. 71. On freedom of movement and association, it was contended that currently, the petitioner was confined in prison because he was a convict. The confinement was therefore lawful and constitutional. Further it was not practicable to create a separate prison for a single intersex person, nor is it possible to get trained intersex personnel to attend to the petitioner. As regards the right of the petitioner to vote, it was maintained that this was not curtailed by the petitioner’s condition as an intersex, because he had not demonstrated that he had applied for an identity card and his application was refused. 72. It was argued that the petitioner’s complaint that he has been subjected to inhuman and degrading treatment contrary to Section 74(1) of the Constitution cannot hold. It was stated that the decision by the Prison authorities to keep the petitioner in separate accommodation was a result of an order issued by this court. This was a lawful order that the Prison authorities had to obey. It was argued that the fact that there were only male or female prisons in the country does not in any way violate the rights of the petitioner as an intersex person, as a case involving an intersex person such as the petitioner, can be dealt with administratively, and was therefore not a matter for the courts. It was http://www.kenyalaw.org - Page 19/45