• RM appears in Lenaola's court, appealing against his conviction of robbery with violence and sentence of death.
• The lower court judge agrees with his colleague to detain him in men's sales where he was molested by curious inmates.
Supreme Court judge Isaac Lenaola has apologised to an intersex person for holding him in a male cell when hearing his appeal at the High Court in Machakos.
The intersex person, identified only as RM, encountered judge Lenaola for the first time when he was appealing against a robbery with violence conviction.
Speaking during the release of the report by a task force on intersex people in Nairobi last week, Lenaola said that when he presided over the appeal, together with his colleague on the bench, they were unable to determine whether RM was a man or a woman.
"We did not agree on whether RM was a man or woman, nor where to detain him. I, however, reluctantly agreed with my colleague to have him be detained in the male cells," Lenaola said. He declined to name his colleague.
RM was in court.
Lenaola said he was transferred from the High Court in Machakos before the conclusion of the appeal. He said he was glad the appeal was successful, RM's conviction was vacated and he was acquitted.
RM was born intersex, having both male and female genitalia. The stigma and discrimination intersex persons go through overwhelmed RM at a younger age. RM dropped out of school at class three.
RM later married but could not stay with the wife.
In 2005, RM was in trouble with the law. He was arraigned at the Kitui chief magistrate's court for robbery with violence, registered as criminal case no. 144 of 2005, a capital offence.
The report by the Kabage Ng'ang'a-led task force details the ordeal RM went through when detained at Kitui police station, Kitui remand prison and later at Kamiti Maximum Security Prison.
For example, the report says, while in prison remand, RM was subjected to the usual statutory search at the prisons as though as he was man, subjecting him to great discomfort.
I apologise to you RM for failing you. My inaction saw you suffer shame, ridicule, and embarrassment at the hand of the inmates yet I was supposed to protect you.Justice Lenaola
"It was realised during the search that he had both male and female genital organs. At a loss as to where to confine RM, prison officers referred the matter to the Kitui Magistrate’s Court," the report narrated.
The magistrate ordered that he be detained at the police station cells after a doctor confirmed he was intersex.
Upon conviction and sentencing to death, RM was committed to Kamiti Maximum Prison on death row sections where he shared basic necessities with male inmates, the report says.
"[RM] was made to share cells, beddings and sanitary facilities with male inmates and was exposed to constant abuse, mockery and ridicule....sexually molested by curious male inmates," the report read in part.
While making his remarks, Lenaola turned to RM, who sat at the high table next to the dais and said, I apologise to you RM for failing you. My inaction saw you suffer shame, ridicule, and embarrassment at the hand of the inmates yet I was supposed to protect you."
Lenaola said that if the country failed to make laws that recognize intersex as third gender, it would fail RM a second time.
In 2007, RM petitioned the High Court for the infringements of his rights he suffered while detained at the correctional facilities.
The grounds of his petition and the judgement rendered in 2010 recognised that legal reforms were needed to protect the rights of intersex persons. This was the reason for creating the task force.