Waruhiu’s heartfelt push for intersex recognition

Self-deprecating, soft-spoken and godly, Jedidah Waruhiu won the hearts of her professional colleagues through her relentless efforts to have intersex people counted in the 2019 population census. They crowned her the 2020 Jurist of the Year.

The Star caught up with her at her Edenville home in Kiambu. True to self, quite spirited, thoughtful and ambitious, the 52-year-old lawyer lives a humble life with her husband and children. 

In 2014, alongside Kagwiria Mbogori, George Morara and Suzanne Chivusia, Waruhiu joined the Kenya National Commission on Human Rights as a commissioner. They left office in March last year after their six-year term ended. 

Reflecting on major accomplishments at the body, Waruhiu is proud to have gotten intersex people recognition, a feat capped by the inclusion of the third sex marker (I) in the 2019 population census.

Neither male nor female, hence in between, intersex people are mostly denied vital documents like birth certificates as the law requires.

Children born intersex also suffer suspicion, mostly treated as victims of a curse, shameful dark spell or as less humans. James Karanja, for example, named Mary Waithera at birth, has to do a lot of explaining why when seeking services that require showing of the national ID.

He is an intersex, brought up as a girl but as time progressed, masculine features became dominant due to hormonal changes, hence necessitated identifying as man.

This mystery saw him endure stand-offs and arrests at M-pesa shops as his ID information and physical features are inconsistent.

Tales of such experiences broke Waruhiu's heart, and when she got the opportunity to serve as a commissioner at KNHCR, she did something about it.

Waruhiu recounted how she rallied colleagues and state operatives to ensure these pains are lessened even by a step through recognition in national counting. 

“My heart has a soft spot for those [intersex] kids. It is a subject that easily draws tears to my eyes because the ordeal they are subjected to for faults not of their own is unacceptable,” she told the Star.

STRUGGLE TO EXPLAIN

The strained efforts — having to repeatedly answer questions such as, 'Who are the intersex?', 'Are they homosexuals?' 'Why must we count them?' — eventually led to Kenya being the first in the continent to recognise them.

"I would hold long meetings with the Attorney General, lawyers, lobby groups, donors and government officials who knew nothing about intersex, that they were naturally born that way and that they are not homosexuals. I'd back home very late," she said, in deep reflection. 

It took mobilising civil society pressure groups, working with politicians and the Attorney General to have the laws and regulations amended to enable counting. The census showed there were over 1,500 intersex persons in the country.

It was a milestone, Waruhiu said, but only a start because intersex people still endure a lot in their daily life.

“The over 1,500 intersex counted were just families, not individuals because enumerators spoke to parents of intersex children on their behalf,” she said. UN figures estimate the range of prevalence of intersex people in a society to be between 0.02 to 0.05 per cent.

For her efforts, Waruhiu was feted as the Jurist of the Year in 2020, an award conferred by International Commission of Jurists, Kenyan chapter. They have given the award for nearly three decades.

The award recognises the outstanding contributions of an individual towards the promotion and protection of human rights, justice and the rule of law in Kenya.

Previous winners include ex-CJ David Maraga (2017), Supreme Court judge Isaac Lenaola (2019), High Court judge George Odunga (2018),Court of Appeal judges Mumbi Ngugi (2013) and Daniel Musinga (2011), and lawyers Willie Kimani (2016), Paul Muite (2015), Mbugua Muriithi (2014) and Lawrence Mute (2012). Late senior counsel Nzamba Kitonga was the Jurist of the Year in 2010.

HAMSTRUNG BY VACUUM

Waruhiu is concerned by the delayed recruitment of commissioners at the rights commission 10 months after she and colleagues exited office into retirement.

The commission has since been under the care of its secretariat. But Waruhiu is concerned that the absence of substantive commissioners is hurting its effectiveness in fulfilling its mandate.

“It is unfortunate the commission has remained without appointed commissioners and hence unable to effectively carry out its most-needed business. The government needs to move with speed to fill these vacancies,” Waruhiu said.

The commission serves as the link between the government and the civil society, helping to bring to attention of the state issues of concern related to human rights.

It also helps the state inculcate a human rights approach in its policy decision and implementation.

But without the commissioners, the agency cannot transact business effectively as there are commitments that only the commissioners can make on its behalf. Nothing significant virtually moves as there are businesses the secretariat cannot transact.

“It is something worth piling pressure on as the delayed recruitment is akin to the state crippling the commission and the larger human rights agenda,” Waruhiu said.

Further, analysts concur that the absence of commissioners exposes the commission to court challenges as the power of the entity is vested in the commission, as pointed out by Suba Churchill, the convenor of Civil Society Reference Group.

"Like the case Charity Ngilu brought against the EACC, someone can go to court to challenge any action or decision taken by the secretariat in the absence of commissioners, leading to nullification," Churchill said.

In other words, he said, not appointing the commissioners has practically rendered the entity dysfunctional.

"The CEO is an ex-officio member of the commission and cannot purport to operate it. In any case, he lacks the quorum to make commission decisions," he said.

In the Ngilu v EACC case, the Kitui governor sued the commission to challenge her arrest and prosecution when she was the Lands CS, her case predicated on the fact that there were no substantive commissioners.

The court agreed with her, ruling that a constitutional commission cannot work legally without the appointment of substantive commissioners.

Churchill fears the delay is part of the hostility of the state against the civil society and entities that champion respect for human rights values in government and policy administration.

Like every other constitutional commission, the law requires that recruitment of commissioners start with the gazzettement of vacancies and forming a selection committee to oversee the shortlisting.

The successful candidates are then taken through a parliamentary vetting process and approval for eventual appointment by the President.

REFORMS AND FUNDING

Waruhiu said besides the appointment of new commissioners, the agency should urgently be reformed to align it with its surroundings, make it more responsive to the needs of the public and more dynamic in connecting non-state actors with the government. 

During their term, she said, KNCHR suffered consistent underfunding from the government, making it to largely depend on the magnanimity of partners and foreign donors.

The commission was also treated with suspicion by other government players, who viewed it as an outsider critic out to uncover any practice that would bring problems, she said.

“Since we were appointed in 2014, we always sought a budget of Sh1 billion. But the Treasury never gave us even half [of it] throughout our tenure. This obviously meant most of the programmes the commission lined up to do in furtherance of its mandate could not be afforded,” she said.

As a commissioner, among the roles she performed was overseeing the Kibera modern project. One day in 2016, unhappy with the allocation of housing units, Kibera residents staged a protest match to the commission's offices, accusing her of bungling the allocation and demanding her resignation.

“They also accused me of allocating some of the houses to myself, a claim that was never close to the truth,” Waruhiu said, while reflecting on the inflection points she encountered during her tenure.

“All my life, I never thought I would have people demonstrate against me. It dawned on me that I was not part of government and people expected me to shoulder and solve their frustrations.”

Edited by T Jalio