A Supreme court judge yesterday publicly apologised to an Intersex person for failing to protect his rights. Justice Isaac Lenaola admitted he did not understand issues affecting intersex persons when he presided over a criminal case against Richard Muasya, who was born with both male and female organs.
Muasya had been charged with robbery with violence at Kitui Chief Magistrate’s court in 2007. At the time, Lenaola was handling the case.
“At the time, I was completely unaware of the plight of intersex persons until Richard Muasya appeared in my court. I feel that we failed you because we could not make a decision. I personally apologise because I do not feel that I gave the case my best although I understand that a determination was later made after I left Kitui court,” said Lenaola.
He spoke when he came face to face with Muasya during the official launch of the final report of the taskforce on policy, legal, institutional and administrative reforms regarding the intersex persons in Kenya at a Nairobi hotel.
Muasya was born with both male and female genitalia and was unable to get a birth certificate, ID or any travel documents. He dropped out of school in Class Three and later got married but his marriage failed. The epitome of his troubles came when he was arrested and charged with robbery with violence. He was later convicted of the crime and sent to Kamiti Maximum Prison.
Here, male inmates sexually molested him and he moved to the High Court seeking to have his rights protected and to have a special prison for Intersex persons.
Although a three-judge bench awarded him Sh500, 000 for harassment, it did not agree that searches by prison warders were illegal and did not give consent to his request to have special prisons set up for intersex persons. He was later released because there was nowhere to keep him.
Yesterday, Attorney General Paul Kihara said the government would enact laws to protect the rights of intersex children and adults in Kenya.
He said the rights of intersex persons have been violated for years because of lack of the law to protect them. Former AG Githu Muigai appointed the taskforce in 2013 to investigate and make recommendations aimed at addressing the plight of intersex persons in Kenya.
The taskforce is recommending that intersex persons be recognised as a third gender by introducing an intersex marker (I) in all official documents and the clear definition of an intersex person as a person who is conceived and born with a biological sex characteristic that cannot be exclusively categorised as female or male. Kihara said he would expedite the implementation of the recommendations.