Kenya is ahead of many African countries after South Africa when it comes to opening up the conversation around the intersex and we must all protect and promote the rights of the intersex under Article 3 and 20 of The Constitution.
Whenever an intersex child is born, the whole family is obviously troubled and affected. A host of legal and social related issues arise. The parents have to grapple with questions like the name,the sex,the future etc of the intersex child. Some parents accept the child as they are. Others treat these children as a curse and or a taboo baby and they abandon them and or kill the innocent children. Others keep them in hiding while many opt to take them to hospital where they undergo surgeries to make them conform to either male or female gender.
All this time the innocent child does not have the capacity to appreciate what’s happening. It is a very difficult time for the family.
The Persons Deprived of Liberty Act 2014 of Kenya provides that an "intersex” means a person certified by a competent medical practitioner to have both male and female reproductive organs. Although this definition is extremely shallow, it offers legal recognition of the intersex members our society irrespective of whether they are citizens or not.
However, The Children Act of Kenya does not define the intersex child. The Act however defines a child and what amounts to parental responsibility. Luckily, the Act does not make any distinction when it comes to the children. All children are equal. We must then read in the intersex child to be part of the children who must benefit from the provisions of The Act since they are human beings.
Section 4 of the Act provides for the best interest of the child principle. This no doubt includes the intersex child.
The Constitution has in Article 53 provided for the best interest of the child principle and specifically offers insulation for all children. This must be read to include intersex children.
Children have a host of rights which include the right to privacy and bodily integrity and autonomy. On the other hand the parents have rights over the children and they are supposed to make decisions for the child. Where do the two competing rights meet? How are the parents and the guardians of intersex children supposed to exercise parental responsibility? How far can they stretch so as not to violate the rights of their intersex children? The approach to the legal dynamics is very different when dealing with children of a category like the intersex.
We must start interrogating questions like;
Whether or not intersex children are entitled to special protection.
Whether or not there is a need for data to be collected on intersex children.
Whether or not there is a need to carry out the corrective surgeries.
Whether or not we need special guidelines to govern medical procedures performed on intersex children whenever there is a medical emergency.
We have no idea how many intersex children there are in Kenya. We need data so as to offer protection to these children.
Children who are born intersex are exposed to unnecessary corrective surgeries in the name of correcting their genitalia.Do we need to subject these children to the surgical knives? The society, the parents and doctors must understand the implications and consequences of the operations. Are the religious leaders addressing the issue of the intersex child? Information will be the power that will help us protect and promote the rights of these children. We need data and legislation.
I believe we need a legislative structure that will insulate and protect the intersex children from unwanted,painful,irreversable surgeries which otherwise are nothing less than intersex genital mutilation or forced circumcision. Such legislation will go a long way in ensuring that there are no surgeries carried out on the innocent children in a space that has no legislation. The law must ensure that these children enjoy equal benefit of the law as guaranteed under the Constitution at Article 27. The parents and the guardians will then be in a position to exercise parental responsibility in a manner that does not expose them from future law suits.
The UN has tightened its noose on the countries that are subjecting the innocent children to these operations. The Chilean and The French Governments were recently under the radar on the issue at the UN.
In appreciating the need to protect the intersex children, the Kenyan courts have embraced the plight of the intersex children. In the judgment delivered on 5th December 2015 by Justice Lenaola in Petition No.266 of 2013, Baby A Vs Then AG and others-www.kenyalaw.org, the judge issued the following directions amongst others, 1.The AG shall submit to this Court within 90 days of this judgment information related to the organ, agency or Institution responsible for collecting and keeping data related to intersex children and persons, generally.
2. The AG shall also file a report to this Court within 90 days on the status of a statute regulating the place of intersexual as a sexual category and guidelines and regulations for corrective surgery for intersex persons.
The Registration of Births and Deaths Act has no room for the intersex. I believe Parliament has also opened up the conversation on the rights of the intersex.
Let us engage in the conversation as we create room for these children under Article 10 and 260 of The Constitution.