R.M v ATTORNEY GENERAL & 4 others [2010] eKLR · Protection from child harassment by police and other law enforcement officers · Securing a child’s right to nationality either at birth or at a later date · Protection against trafficking in children including repatriation and family reunion · Getting a passport, opening a bank account, obtaining credit, voting or finding employment 20. It was submitted that the petitioner and other intersex persons are denied the above rights simply because the Births and Deaths Registration Act failed to make provision for their sex status. This statutory omission is contrary to the provisions of Article 6 of the Universal Declaration of Human Rights 1948, which reads:“Every one has the right to recognition everywhere as a person before the law.” It is also contrary to Article 7 of the same Declaration which provides as follows: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” 21. It was argued that the lacuna in the Births and Deaths Registration Act means that the petitioner cannot enjoy the fundamental rights and freedoms enshrined under the Constitution with regard to life, liberty and security of the person. For instance, the petitioner’s freedom of association, and freedom of movement, under Sections 80 and 81 of the Constitution respectively have been infringed because he can neither associate nor move freely without proper identification documents. It was also argued that the petitioner was denied his right of freedom of movement contrary to section 81 of the Constitution because the right to movement was facilitated by documents such as identity card and passport which could only be obtained after getting a birth certificate. In the case of the petitioner, he could not get the necessary travel documents unless he lied about his sex that he was either male or female. It was maintained that this was also contrary to Article 20 of the Universal Declaration of Human Rights, which provides for freedom of peaceful assembly and association. 22. It was further submitted that contrary to Section 82 of the Constitution which provides protection to individuals against discrimination, the petitioner was suffering discrimination due to his intersex status. This was because of lack of legal recognition of his status. It was submitted that statutes like the Births and Deaths Registration Act, and The Prisons Act (amongst others) form the basis of discrimination against the petitioner and other intersexuals by failing to give the intersexuals legal recognition. Sections 2b and 7 of the Births and Deaths Registration Act were identified as being inconsistent with Section 3 of the Constitution which provides as follows:– “This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.” 23. The court was urged to apply a liberal interpretation of the term “sex” used in Sections 70 and 82 of the Constitution so as to include intersex as a criterion upon which no different treatment can http://www.kenyalaw.org - Page 9/45