THE TASKFORCE REPORT ON POLICY, LEGAL, INSTITUTIONAL AND ADMINISTRATIVE REFORMS REGARDING THE INTERSEX PERSONS IN KENYA
The Taskforce on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons was constituted and gazetted by the Office of the Attorney-General (OAG) vide Gazette Notice No. 4904 on 26th May, 2017.
In undertaking the assignment, the Taskforce undertook comprehensive and intensive research and stakeholder consultations. In addition, the Taskforce rolled-out a nationwide survey to complement desk review and stakeholder input, which informed the key proposals on development of policy, legal, institutional and administrative measures to address the plight of intersex persons and development of an implementation matrix.
In Chapter One of the report, the Taskforce highlights that, while it is estimated that between 0.05 to 1.7% of babies worldwide are born intersex, most countries have not taken steps to establish comprehensive data on intersex persons. Consequently, most countries have not made concrete policy, legislative, institutional or administrative steps specifically aimed at safeguarding the rights of intersex children.
In Kenya, the High Court in the cases of R.M v Attorney General & 4 others , eKLR and Baby ‘A’ (Suing through the Mother E A) & another v Attorney General & 6 others , eKLR), upheld the rights of intersex persons to non- discrimination and affirmed their right to protection from torture, cruel, inhuman and degrading treatment by holding that intersex persons are protected under Article 27 (4) of the Constitution. The Court also underscored the need for empirical data on intersex persons in Kenya to inform relevant reforms to address challenges faced by intersex persons as a marginalised group.
The Persons Deprived of Liberty Act (2014) is a key legislative step that provides for the protection of human rights of intersex inmates pertaining to upholding their dignity and safeguarding their security through specific provisions on searches and confinement. Further, the National Police Service through its Standing Orders under Chapter 15 made provision for protection of the dignity and security of intersex persons while in detention by providing that intersex persons shall choose the sex of the officer to conduct any body searches and shall be confined separately from the male and female inmates.