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The Taskforce on Policy, Legal, Institutional and Administrative Reforms regarding Intersex Persons in Kenya was formed by the Attorney General in May 2017. The membership of the Taskforce is drawn from various institutions including Kenya Law Reform Commission (KLRC), Office of the Attorney General & Department of Justice, Directorate of Immigration & Registration of Persons, National Gender and Equality CommissionKenya National Commission on Human Rights (KNCHR) and the CRADLE. The Taskforce has the following mandate:

  1. Compile comprehensive data regarding the number, distribution and challenges of Intersex persons;
  2. Undertake comprehensive literature review based on a comparative approach to care, treatment and protection of Intersex persons;
  3. Examine the existing policy, institutional, legislative, medical and administrative structures and systems governing Intersex persons;
  4. Recommend comprehensive reforms to safeguard the interests of Intersex persons;
  5. Develop a prioritized implementation matrix clearly stating the immediate, medium and long term reforms governing the Intersex persons; and
  6. Undertake any other activities required for the effective discharge of its mandate.

The work of the Taskforce is thus aimed at safeguarding the interests of intersex persons by identifying the immediate, medium and long term reforms required to respect and protect their rights as Kenyans, and to undertake any other activities required for the effective discharge of its mandate. The findings and recommendations of the Taskforce are to provide clarity on issues affecting intersex persons and propose policy and legislative measures to address these issues.


Frequently Asked Questions on Intersex


  1. What is Intersex?

Intersex is a condition where a human being has physiological characteristics which cannot be classified as exclusively fitting into the binary concept of ‘male’ or ‘female’ at birth.

  • There are as many as 46 types of physiological sex characteristics that contribute to the intersex condition.
  1. Who is an intersex person?

  • An Intersex person is a person who has been born with biological characteristics which cannot fit in the typical male or female binary.
  • The ambiguity may have any four or a mix of these characteristics: anatomical (i.e. bodily structure, e.g. vagina, penis, breasts), hormonal (e.g. estrogen, testosterone), gonadal (i.e. reproductive organs, e.g. ovaries, testes) or chromosomal (i.e. genetic makeup, e.g. XX, XY)
  • In the past intersex persons have been referred to as ‘hermaphrodites’, though this term is no longer used or accepted. The current medical terms used are ‘differences in sex development’ or ‘disorders of sex development’ (DSD). However the human rights word that respects and protects the person is ‘’intersex’’.

 

  1. What is the estimated population of intersex persons?

  • It is estimated that between 1.7 and 3.0% of the global population is intersex. This means that there may be as many as 1,440,000 intersex persons in the Republic of Kenya.  We don’t know the exact number of Kenyans who are born intersex because this information has not been properly document at birth (hospitals), registration (education) nor collected. However the Task Force on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons in Kenya is in the process of collecting disaggregated data on the number and distribution of intersex persons in the country.

 

  1. What is the definition of sex?

  • ‘Sex’ is the classification of a species (for example human beings) according to the usual understanding that there are (binary) two types, ‘male’ and ‘female’, ‘boy’ or ‘girl’.

 

  1. What is the definition of gender?

  • ‘Gender’ is “the social definition of women and men among different communities and cultures, classes, ages and during different periods in history”. Gender is a social construct (shared understanding of society) based on beliefs or stereotypes about masculine and feminine traits roles (i.e. what is a ‘typical’ or ‘normal’ male or female)

 

  1. What is the legal framework for the recognition and protection of intersex persons’ human rights in the Republic of Kenya?

  • Intersex persons are human beings entitled to all human rights and fundamental freedoms as stated in Chapter 4 of the Constitution of Kenya [2010].
  • Article 3(1) of the Constitution of Kenya [2010] provides that every person has an obligation to respect, uphold and defend the Constitution thus empowering everyone with the legal duty to protect the rights of Intersex persons.
  • The Constitution through Article 10 states that the national values and principles of governance include inclusiveness, equality and protection of the marginalized.
  • The purpose of the Bill of Rights in the Constitution is to “preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings”.
  • Article 27 of the Constitution provides safeguards and protects against discrimination of persons based on grounds which include sex. The Constitutional Court has also re-affirmed that intersex persons have the same human rights and fundamental freedoms like any other person. As a result, everyone is to be given an opportunity to participate in society on an equal basis with other persons, for example to be issued a birth certificate without discrimination of any kind.
  • Article 28 of the Constitution states that “every person has inherent dignity and the right to have that dignity respected and protected.”
  • Article 53 of the Constitution states that every child has the right to be registered and protected from harmful practices, and that a child’s best interests are always the most important factor/consideration.
  • The Persons Deprived of Liberty Act, 2016 defines an intersex person. However, this definition is limited.

 

  1. What happens when a baby is born intersex?

  • Often intersex newborns are assigned a sex by the medical personnel or their parent(s) to either male or female for the purposes of birth registration and social life.

 

  1. Is there medical treatment for intersex persons?

  • There is no known full proof medical treatment or remedy for intersex persons worldwide. However, in some cases, which present a medical emergency in the new born period,  hormonal treatment and/or surgery is required to save the baby’s life [i.e. Congenital Adrenal Hyperplasia] or ensure that their body functions properly, but in most cases intersex children’s bodies function like any other human being. It is important to note that most intersex persons do not require immediate treatment for any health or medical reasons.
  • Some intersex children are subjected to ‘corrective’ surgery. This is usually done by removing the whole or part of the child’s reproductive organs, so that the child’s internal or external bodily structure is ‘corrected’ to look either male or female.
  • In Kenya, there are currently no guidelines for medical practitioners to rely on in providing medical treatment for Intersex persons.

 

Is corrective surgery beneficial or effective?

  • There is no global consensus on whether corrective surgery is beneficial or harmful to an intersex person’s physical, emotional and social development, though courts in other countries have ruled that corrective surgery is not medically necessary in most cases and therefore can wait until the child is able to make the decision for themself. Additionally, different scholars state that some intersex conditions require immediate corrective surgery while others don’t.
  • However, there is limited data on the benefits and/or effectiveness of corrective surgery as most interventions are not monitored for evaluation.

What is Intersex Genital Mutilation (IGM)?

  • Just like Female Genital Mutilation (FGM), IGM is any procedure involving partial or total removal of the genitalia or other injury to the reproductive organs of an intersex baby, infants or children.
  1. Gender Pronouns: How do I refer to an intersex person?

  • What is a pronoun?

A pronoun is a word that refers to either the people talking (I or you) or someone or something that is being discussed (he, she, it, them and this).  

  • A gender neutral (or gender inclusive) pronoun is a pronoun that does not associate a gender with the person who is being discussed.
  • While there is no single globally accepted gender-neutral pronoun, several options have been proposed. Two such options are:
    • zie (he/she), zim (him/her), zir (his/her), zis (his/hers), zieself (himself/herself); or
    • ve (he/she), ver (him/her), vis (his/her), vers (his/hers), verself (himself/herself)

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Kenya`s budget 2015/2016 was the highest in the country`s history and was presented 3 months shy of the 5th anniversary of the promulgation of our Constitution on August 27th 2010. It is worth to noting that around Kshs. 154 billion was allocated to the Governance, Justice, Law and Order Sectors signaling the Government's commitment to maintain the pace of already instituted reforms.  While we take stock of progress, we must evaluate current status of reforms which is the cornerstone in the implementation of the Constitution and give feedback to Kenyans on value for money.

The Case For Reform Of The Tribunal System

Introduction

At a time when Kenyans are striving to reform the judiciary, among other institutions, to ensure greater access to justice for majority of the citizens, it is imperative that we examine how Tribunals have fared in resolving disputes either between citizens inter se or between citizens and government departments in Kenya. Tribunals normally address issues of administrative justice, which would otherwise end up for adjudication and resolution by the ordinary courts. To the extent that Tribunals are an important alternative forum to the regular courts for remedying citizen’s grievances and addressing administrative justice issues, it is important to evaluate how they have discharged their critical mandate.

The Kenya Law Reform Commission is obligated by section 5 (6) (b) of the sixth schedule to the Constitution to cooperate, work together and co-ordinate with the Commission for the implementation of the Constitution and the Attorney-General in preparing and tabling in parliament, the legislation required in implementing the Constitution. This is in addition to other values and principles enshrined in the Constitution that the Kenya Law Reform Commission must ensure are adhered to in the preparation of critical legislation required to implement the Constitution both at the National and County levels of Government.

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