Senior counsel whose heart beats for intersex persons

He believes in a world where all are accepted and appreciated as those born free and equal in rights and dignity.

This is the story of senior counsel John Chigiti, who came to the limelight for fighting for justice and legal recognition of intersex persons.

An intersex person is one who is born with both male and female sex organs in a range of physical conditions. 

His interest in the rights and welfare of intersex persons was not in the forefront until he went to study law at Pune University in India in 1995.

There, he got to understand more about intersex persons.

“When I came to Kenya, I got interested in the case of RM and Baby A, which helped create awareness on the rights of intersex persons in Kenya,” Chigiti said in an interview with the Star.

Working with the minority intersex group, he has come to appreciate that they are human beings with rights and needs.

Chigiti said all the society needs to do to help them cope in life is to get to know them at an individual level, accept them, protect and promote their rights.

“We must make them part of the national values and principles of governance," he said.

"Inclusion in schools, health, housing, employment and, indeed, all the laws, policies and programmes will be the key to the promotion of their right to dignity and non-discrimination.”

Chigiti has authored a book called Intersex Persons and the Law in Kenya. He has litigated two cases for them and participated in the task-force on intersex persons set up by the Attorney General.

ENDING DISCRIMINATION

The report by the team of experts, which was handed to the government in 2019, indicated that 300 cases of intersex persons have been documented, though the number is believed to be much higher.

It listed problems and discrimination faced by intersex persons and made a list of recommendations.

The report examined issues of education curriculum in primary, secondary and tertiary education, with the aim of recognising intersex people. It recommended training in the syllabus and modules on sex development categories, including biology, anatomy, life skills, anthropology, criminology and theology. 

It further recommended the introduction of a third gender called Intersex with the marker of the letter 'I', in addition to already recognised genders of female and male.

This is meant to help them get identity documents and secure jobs without having to face the discrimination of being asked whether they are male or female.

Also, it is aimed at making their registration at birth easy since currently, most doctors leave the gender of child blank at birth when they discover it’s an intersex person.

The task force was formed following a court order obtained by baby ‘A’.

In the case, baby ‘A’ successfully challenged the law and managed to get a court order directing the state to conduct a census of intersex persons countrywide.

The child asked for an order declaring that all surgery on intersex infants be undertaken only after the court's approval.

The issue is sensitive as many parents decide shortly after birth on radical surgery without informed consent as the child grows older, understands the condition and can make a choice.

Based on that court order, the state assembled experts who deliberate on issues involving intersex persons, did a census and compiled a report.

The team was called the Task Force on Policy Legal, Institutional and Administrative Reforms Regarding Intersex Persons in Kenya.

It included various medical experts, educators, sociologists, lawyers and representatives of various sectors of society.

The team had said Section 18 of the Borstal Institutions Act discriminates against intersex persons. Experts want it substituted with legislation that allows male, female and intersex persons to be detained in appropriate separate facilities for the safety of intersex people.

OUT OF WEDLOCK

Other prominent cases Chigiti handled include one that allowed children born out of wedlock to have full identity.

In the case, the court gave them the right to carry their biological father’s name and scrapped from law books a statute denying them that.

Judge Mumbi Ngugi declared Section 12 of the Births and Deaths Registration Act, which discriminated against children of unwed mothers by denying them the right to carry their father’s identity, unconstitutional. That law prohibits a mother from entering the biological father’s name on a birth certificate without the man’s consent. Many men refuse, wary of legal and financial responsibility.

Justice Ngugi in the case had said the section violates article 27 of the constitution, as it only allows names of fathers to be included in the child’s birth certificate with their consent. She said: “There needs to be a change in the law as the children born out of wedlock have a right to have names of their fathers included in the birth certificates.”

Chigiti has also done several talks in universities with Rotary clubs and written on media platforms to create awareness about intersex persons.

He also goes beyond representation in court and sometimes spends time mentoring the young intersex persons, educating them and helping where he can with his resources.

He explained to the Star that some intersex persons are rejected in schools and subjected to unnecessary searches. 

"They are killed, kept in hiding or neglected. They suffer rejection, discrimination, isolation and stigmatisation," he said.

Chigiti also represents clients in family cases because he believes the family is the fountain of all that we have as human beings.

If the family unit is insulated, then the rest of the social economic dynamics will thrive, he said.

He also sits on the board of the Legal Resources Foundation. This is a lobby group that fights for rights. According to its website, its motto is ‘haki itawale’, which loosely translates to justice for all, and it endeavours to get justice for every citizen, despite their social, political and economic status.

Chigiti has so far done 40 pro bono cases. He started practising law in 1997 and was inspired to pursue law to promote equality.

The senior counsel, who describes himself as down-to-earth, believes in justice and equality. His role model is senior counsel Pheroze Nowrojee. He admires Nowrojee's wisdom, humility and consistency.

Chigiti loves writing during his free time and reading books. Currently he is reading 'Britain’s Gulag'. He also collects antiques, and occasionally, he goes to the gym and swims to keep fit.

The father of four does not have any regrets as a lawyer. The one thing he would like to change is the rights of intersex children.

When not fighting for justice, he plays the saxophone and listens to music.

PROFESSIONAL BACKGROUND

Chigiti is a bar member and counsel at the International Criminal Court and The African Court

He is also ex-special prosecutor with the ODPP for Sexual and Gender-Based Violence cases.

For five years, 2014-19, he served as a lecturer at the Kenya School of Law

He is a trial advocacy trainer and faculty member of Justice Advocacy Africa.

Chigiti offers mentorship to advocates at The Law Society Nairobi Chapter, Strathmore University, and the Centre for Rights Education and Awareness, Creaw.

His practice is largely dedicated to family law, pro bono and public interest litigation and human rights cases, including intersex persons, informal settlements and housing, marginalised and minority groups, and the rights of persons with disabilities, statelessness, refugees, the environment and prisoners.

He has in the past been retained to do cases for the UN High Commission on Refugees, the Refugee Consortium of Kenya, the LSK, Fida, Women’s Link Worldwide-Columbia and the Constitutional and Human Rights Division of the High Court.

Chigiti won the Lawyer of The Year Award 2020. He also won a host of pro bono Lawyer of the Year awards from Amnesty International the LSK, The Cradle and Kituo Cha Sheria.

He is a member of the Rotary Club and Nairobi lawyers’ music band.

Edited by T Jalio