An intersexed Kenyan has applied to Kenya’s constitutional court to be released from Nairobi’s Kamiti Maximum Security Prison on the grounds that he belongs in neither a jail for men nor women.
Richard Mwanzia Muasya, who was convicted and jailed for robbery with violence, says he is subjected to continuous human-and constitutional-rights violations at the prison, which is for men only. He claims to suffer inhuman and degrading treatment at the hands of male convicts, prison warders and the public.
Muasya was born with both male and female sex organs, but regards himself as a man. He has asked the court to release him because, he says, he is neither man nor woman and there is no special prison for people like him. He argues that if he is transferred to a female prison he will suffer the same fate.
The second leg of his case challenges Kenyan law for discriminating against him. He argues that the law recognises only the two sexes, male and female, and should be changed.
The fact that Kenyan law does not recognise intersexuality makes it difficult for him to acquire vital documents, including the national identity card, Muasya says in papers filed in court. This is because he does not know whether to complete application forms as a man or a woman.
The birth and death registration law also does not provide for intersexuality, making it impossible for him to acquire a birth certificate.
Muasya was arrested with three other suspects in February 2005 after a robbery during which a woman was gang-raped. However, the rape charge against him was dropped after medical reports confirmed that he is intersexed.
The medical examination determined that none of his sex organs was fully developed and that it was unlikely that he could commit rape.
Muasya and other intersexed people in Kenya suffer ridicule and discrimination. In some instances they are kept out of the public eye because people are ashamed of them.
The problem facing Kenya’s constitutional court is that he has been convicted of an offence, yet the country has no separate facility for holding intersexed offenders.
In addition, the Kenyan constitution does not recognise the unique rights of intersexed citizens. Under South African law, the intersexed are recognised and their rights are protected.