Intersex Awareness Day 2017

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26th October is the Intersex Awareness Day; this is an internationally observed awareness day designed to highlight human rights issues faced by intersex people. This year the day was marked with the message of #FreeToBeMe.

The Day is an international day of grass-roots action to end shame, secrecy and unwanted genital cosmetic surgeries on intersex children.  The day also provides an opportunity for reflection and political action. Between October 26th and November 8th, organizations bring attention to the challenges intersex individuals face, culminating in the Intersex Day of Remembrance on the birthday of Herculine Barbin, also sometimes known as Intersex Solidarity Day.

A person who is intersex is someone who is neither 100% male or female; it is time we stop normalizing genital surgery on intersex infants or children since humans are not only XY and XX we are also XYY,XXYY, XX/YY,XXXY…

Interesting Facts about intersex persons:

Fact 1: Intersex is not new it has been around since the beginning of human existence.

Fact 2: Being intersex relates to biological sex characteristics, and is distinct from a person’s sexual orientation or gender identity.

Fact 3: Intersex persons are often subjected to discrimination and abuse if it becomes known that they are intersex, or if they are perceived not to conform to gender norms.

Myths about intersex persons:

  1. Intersexuality is as a result of witchcraft or a curse.
  2. Navaho – a Native American people of the Southwestern United States believed intersexual to be the supernaturally designated custodians of wealth, and any family with an intersex child born to it has its future wealth and success assured.

Indifference…

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It’s time we talk about it.

It’s neither a boy nor a girl; 9months of pregnancy, 12 hours of labor later, the mother wants to hold their bundle of joy, she wants to name them after their favorite celebrity icon (whose name half her relatives will pronounce wrong), and she is dying to hear the doctor announce their sex. The doctor looks puzzled he stammers and says “its fine we can fix this.”

Intersex persons could have one of the following conditions; External genitals that cannot be easily classified as male or female, Incomplete or unusual development of the internal reproductive organs, Inconsistency between the external genitals and the internal reproductive organs, abnormalities of the sex chromosomes, abnormal development of the testes or ovaries, Over- or underproduction of sex-related hormones Inability of the body to respond normally to sex-related hormones.

Non-binary in this article will be implying a person whose sex organs are not solely identified to be male or female.

When an intersex baby is born, abnormality, disorder, curse, problem, fix it! Are all words that are thrown around from the outset of their life. In the case of Alex Omondi, (not the real name) the parents could not afford to “fix” the situation at birth, they therefore chose to raise and socialize him to be male since a son is culturally the preferred sex.

Alex hit puberty and began experiencing misplaced features, far from what learned in science class; Alex’s voice was sharp, hips were broad, and had what appeared to be breasts. This caused a lot of ridicule and bullying. The parents were desperate to ease Alex’s embarrassment and decided visit a herbalist to help “cure” the condition. Inevitably the treatments failed. A boy’s name was as close as to being male as Alex ever got.

 At 25 Alex attempted to marry, but the law did not recognize the marriage. Basically the law does not prohibit an intersex person to marry but it only recognizes marriage between a man and a woman. Alex’s physiology would not permit them to consummate the marriage as a male. Otherwise if Alex had corrective surgery and was now male then legally the marriage would have been recognized.

As a result of not having a birth certificate or national identity card, he could not enjoy citizenship rights, including the ability to register as a voter, obtain travel documents, acquire property and get employment. Alex felt alone, disillusioned and helpless and even became secluded. To get back at life for all the lemons thrown his way, Alex joined Gaza a notorious teenage gang in Nairobi with a record of criminal activities. 1 year later a robbery went wrong. Alex was arrested and charged with the offence of robbery with violence. Alex was tried, convicted and sentenced to death .later Alex was committed to a maximum prison alongside male death row convicts, whom he shared cells and facilities with. Alex reported to have been was exposed to abuse, mockery, ridicule, and inhuman treatment, as well as sexual molestation by the other inmates.

As a result Alex sued the government for being discriminated against and disadvantaged socially as a consequence of the failure of his legal recognition as an intersex person. Hon. H.M Okwengu J , Hon. G. Dulu J and Hon. R. N Sitati J, sitting at a High Court in Milimani where the petition was heard dismissed the petition and granted the petitioner Kshs. 500,000/- for violation of the petitioners  right to protection against inhuman and degrading treatment they further ordered that in view of the ambiguity surrounding the sex of the petitioner the order for the petitioner to be held in separate and exclusive accommodation from other male convicts would remain in force. This ruling indicated that the society was not ready for a third gender. The high court suggested corrective surgery to conform to either male or female.

We all have an emotional need be to accepted by a group whether it is family, friends, co-workers, a religion, or gender, people tend to have an ‘inherent’ desire to belong and be an important part of something greater than themselves. When one walks into a room it’s not their religion, race or tribe that we first notice but whether they are male or female. Sex and gender issues are that basic in our lives. The case of Alex may be unique to him and most of us may not relate after all we consider ourselves normal.

The society is basically you and I and a majority people who in this case are “normal” and belong to the sex male or female. We are too uncomfortable to accept those that do not belong. We often throw around words like abnormal which fuels stigma and shame about an individual’s ‘body. Our laws blind to protect and even suggest surgery to make fix “them”.

About corrective surgery, this should be discussed in length. But if you cringe each time you hear the word FGM. Then you will need to brace yourself for what is coming up!

On Intersex Awareness Day, Kituo reaffirms our strong commitment to promoting a society where all persons can freely and equally express themselves with dignity, regardless of sex characteristics. When those most marginalized in society are afforded equal protection and opportunity, global security and stability are strengthened.

Increased recognition, understanding and awareness of intersex persons and their human rights strengthens democracy for all.

Lucy Kabura

FMP- Kituo Cha Sheria.

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Open Letter: Stop police rape of civilians; ensure access to medical care for victims

An open letter to Cabinet Secretary for Health Dr. Cleopa Mailu, Acting Interior Cabinet Secretary Dr. Fred Matiang’i, and Inspector General of Police Mr. Joseph Boinnet.

 Stop police rape of civilians; ensure access to medical care for victims

Dear Cabinet Secretary for Health Cleopa Mailu, Acting Interior Cabinet Secretary Fred Matiang’i, and Inspector General of Police Joseph Boinnet:

Early accounts of the chaos that followed the announcement of the August 8, 2017 presidential election results indicated that rape and sexual violence occurred in affected communities. Since then, we, the organizations listed herein, in collaboration with community actors, human rights defenders, health workers, government institutions, and development partners, have received, recorded, and assisted numerous victims of sexual violence from Nairobi, Kisumu, and other parts of Nyanza and Western Region. Preliminary findings of in-depth research conducted by Human Rights Watch confirm incidences of sexual violence in Dandora, Mathare, Kisumu, and other affected areas.

So far, we have counted at least 60 cases of sexual violence committed during the August 2017 election-related violence, and the numbers are rising by the day.

The emerging cases reveal a disturbing pattern:

  • The perpetrators described by victims were mostly police officers and/or men in uniform who were deployed to protect communities affected by the election-related violence.
  • Other reported perpetrators include militia groups and gang members who took advantage of the chaos.
  • Women, girls, and men are all affected and have suffered varied forms of sexual violence, including rape, gang rape, sexual assault, indecent assault, and forced nudity, in some cases accompanied by severe physical assault.
  • Sexual violence experienced by the victims has been gruesome and terrifying. Some victims were raped collectively with others from their communities by the same perpetrators, while in other cases, children and husbands witnessed their mothers and wives being raped.
  • The majority of the victims were unable to access timely medical care, mostly due to the prevailing context of insecurity and the ongoing nurses’ strike. Some victims sought medical treatment at local clinics within their communities, but most of those facilities did not provide the required emergency and comprehensive medical and forensic post-rape care. In some cases, victims were asked to pay for the completion of Post-Rape Care and P3 medical forms, contrary to existing laws. Several victims urgently need medical treatment for resulting injuries and illnesses, as well as counselling and psychosocial support.

The emerging cases and patterns of sexual violence reflect a worrying but familiar reality in Kenya. Almost 10 years ago, the Commission of Inquiry into Post-Election Violence following the 2007 elections documented at least 900 cases of rape and other forms of sexual violence, which it termed “a tip of the iceberg.” The current political context related to the fresh presidential elections scheduled to take place on October 26, 2017 signals the potential for increased incidences of sexual violence. Therefore, the state should urgently: initiate measures to protect individuals and communities that may be vulnerable to sexual violence; ensure timely, accessible, affordable, quality, and comprehensive medical and forensic services for any person who may be a victim of sexual violence during this political period; and expeditiously investigate and prosecute perpetrators.

We wish to call your attention to the following concerns:

To Acting Interior Cabinet Secretary Dr. Fred Matiang’i and Inspector General of Police Mr. Joseph Boinnet:

  1. We urge you to issue a public notice outlining the protocols and code of conduct to be followed by police officers in the conduct of security operations, including specific circumstances under which police may be permitted to enter the homes of civilians. All Kenyans are entitled to know the laid down rules and procedures that guide police conduct during operations, so that they can be aware and take appropriate action when a line is crossed.
  1. We call on you to issue a written and public caution to all police officers to desist from committing any form of sexual violence, or other crimes or violations in the conduct of their duties.
  1. We call on you to issue a written and public caution to all police commanders who are responsible for specific police operation teams to be vigilant and take immediate and decisive action against any police officer suspected or known to have committed sexual violence or other crimes in the conduct of their duties.
  1. We further call on you to work with local actors in accordance with the community policing policies to enhance security within affected communities so as to mitigate the potential for sexual violence by civilians who may take advantage of existing chaos to commit crimes.
  1. We urge you to take swift and proactive action to strongly condemn and investigate reported cases of sexual violence and to put in place mechanisms that will support survivors to come forward and report their cases in a secure, sensitive, and timely manner without fear of reprisals from perpetrators, especially in cases involving police officers; such actions are in service of the justice and accountability that are owed to the entire Kenyan populace.

To Cabinet Secretary for Health Dr. Cleopa Mailu:

 You have, on numerous occasions, explicitly noted the significant strain caused by the ongoing nurses’ strike on the provision of health care services across the country. This burden is even higher in situations that require emergency interventions to avert life-long health consequences, such as pregnancy and HIV in people who have suffered sexual violence. Moreover, the inability of survivors of sexual violence to access timely and appropriate medical services significantly hampers the collection and documentation of medical forensic evidence that is vital to support accountability efforts.

  1. We therefore urge you to expeditiously work with the Governors, county government health officials, and development partners in affected areas and potential hot spots to put in place contingency measures to ensure that sufficient personnel are available in health facilities to provide emergency post-rape care and other services during this period.
  1. We urge you to work with the Governors and county government health officials in affected areas and potential hot spots to ensure the provision of sufficient post-rape care treatment and forensic commodities in health facilities, especially local health facilities that are closest and most easily accessible to communities.
  1. We call on you to issue a written and public notice reminding health providers and administrators that they are obligated to provide free medical treatment to survivors of sexual violence, including completion of Post-Rape Care and P3 medical forms, in accordance with the Sexual Offences Act of 2006 and Sexual Offences (Medical Treatment) Regulations of 2012. To this end, we urge you to work with relevant county government officials to establish working relations with private health facilities that may be most accessible to affected communities in order to facilitate provision of free medical treatment to survivors of sexual violence.

Your expeditious action is not only required under our Constitution and laws, but also necessary to assure all Kenyans, survivors, their families, and communities that the state does not condone sexual violence committed by the police or any other person, and will take all measures necessary to end impunity for these violations.

Sincerely,

Physicians for Human Rights

Kituo Cha Sheria-Legal Advice Centre

Coalition on Violence against Women

Women’s Link Worldwide

International Commission of Jurists-Kenya

Independent Medico-Legal Unit

Journalists for Justice

A Note on the Cycle of Electoral Violence & Police Brutality in Kenya

A Note on the Cycle of Electoral Violence & Police Brutality in Kenya

Abstract

 This paper is premised on illuminating the cyclic curse of electoral violence and police brutality. These dark clouds seem to engulfed periodic elections in Kenya. While electoral violence and police brutality are not mutually exclusive, in Kenya they appear to be two sides of a coin. This paper argues that the Constitution of Kenya 2010 and the new regime of governance seem to only have cured the symptoms and not the disease. The expectation was that the Ransley J. report would transform the police force into a police service as the legal system breed a culture of credible, accurate, free and fair elections, somethings that are still a mirage. Furthermore, ethnic politics, disregard and contempt of the law and an incumbent loyal police force only but inflame the situation. This paper therefore posits that there is need to re-look, review and implement the law even as there is a deliberate attempt to change the culture and training of police. This is however premised in ensuring that the electoral management body and its enabling laws are in consonance

Introduction

In Kenya, many people understand electoral violence and police brutality within the confines of 2007 post- election violence. This is attributed to its “full blown” nature. The 2007 PEV was a culmination of the unchecked pockets of electoral violence witnessed in 1992 and 1997. It was characterized by incidences of the police-acting for the incumbent-taking on its citizens, a period of lawlessness where innocent people were being robbed, their property destroyed and ethnic cleansing.  This period also brought to the fore ethnic militias such as the Mungiki. All these characteristics inevitably leading to massive deaths, distruction of property, fear and lawlessness. The Grand Coalition Government would later be formed with the agenda to inter alia reform the electoral system, the police, carry out land reforms and Constitutional reforms with the aimed at maintain peace and tranquility in Kenya. A decade later and Kenya still witness’s electoral violence and reports indicate that about fifty citizens and counting have lost their lives, millions of properties are lost and Kenya seems to be going back to 2007. Other than police violence and Ethnic based violence, there is the other form that takes place within political parties in nomination as well as in party politics often thought of as friendly fire. It is therefore perhaps time to deal with these issues but what is the magic and why does Kenya seem to be going in a cycle? This article unpacks these issues

Reasons for Electoral Violence in Kenya

In 2007 the eruption of violence was attributed to a number of issues. While Kenya and her leaders understand them, they are always forgotten as soon as it is convenient. This therefore makes general elections in Kenya a time for anxiety and fear. Elections in Kenya have slowly transformed from a time to democratically elect leaders to a time to fear for lives and property. While it is assumed that the majority of the population always travels to vote for the leadership at “home” there are many who choose to go for safety reasons. Election days in Kenya are “dangerous”. This is beside the fact that electoral violence and police brutality are a breach of the law. Article 1 gives the people of Kenya sovereign power, article 10 speaks to the national values, article 26 on the right to life, article 28 on human dignity, article 38 on the freedom of expression, article 37 on assembly picketing and petition. There is also a breach on article 40 and specifically article 81(e) and  article 243. There are also a number of Acts of parliament such as the Public order Act that come into play. Why electoral violence & police brutality in Kenya?

Firstly is the issue of culture.  Electoral violence is a culture that has been inculcated by the people and their leaders. Think of this in the light of election within a party or a county. How many times have you witnessed or heard of violence? There are politicians and followers who believe in the politics of violence. They attribute political power to the ability to fight and intimidate their opponents and voters. This culture can be traced as early as 1966 and is still alive. The Constitution of Kenya 2010 and the electoral offences Act are clearly against this however, a law that is never implemented may not help in controlling behavior.  As much as violent confrontation are a norm in Kenya politics, the electoral management body is yet to disqualify any candidate on this ground despite having full powers to do so. The culture of violence within the voters may also be discouraged and this may still be done through strict compliance of the law i.e. arresting and charging those who cause breach of peace and voter education which results to a sophisticated voter who may not engage in violence.

Secondly there is tribal politics. It has been argued that the lack of a national identity has created tribal constituency. These tribal constituencies always form foot soldiers for the tribal politicians. The “Us against them” always breeds hate which time metamophosized to violence. Kenyan politics documents the hatred between the Kikuyu and the Luo believed to have started at independence and fifty years on it still exist. Devolution of power and resources has also opened up electoral violence between regions and clans. How do we solve this? This is a humongous problem, it has made countries burn and fall. Other than inculcating a national culture and identity, equity equality and bringing people together is key

Thirdly, there is economic ground and productivity in a country. The last five decades of independence has seen a country that keeps plunging deeper into debts, has rampant government corruption, high rate of youth unemployment, high cost of living, poor health and education structures. Kenya seems not to be moving, the challenges today are almost similar to those at independence. These have the effect of  breeding a despite people who are ready to fight, if not to change things then to  bring it all down. The puzzle of youth unemployment and productivity is one that has been given a lot of lip service. Kenya needs to strategically take care of its youths and its people. Perhaps then, elections may be fought on issues and not though violence

Institutionalization is the other reason why there is electoral violence. As much as the Constitution 2010 is based on institutions, Kenya is still stuck in the error of manipulation of systems as well as a people who do not have faith in the ability of institutions. The IEBC for example is one institution that has made it a habit of being in the middle of controvacies. It behooves Kenyans and Kenya to work on the IEBC if violence is to be averted. Free, fair credible elections may change the culture of violence. IPOA and NCIC are also expected to get to work and delve into their constitutional mandate

Lastly is police brutality. This is as a result of keeping colonial mentality. It must not be lost on Kenyans that the initial police force was crafted by the colonial masters. For them the citizens were to be brutalized and had no rights. The Africans were slaves and therefore were to be treated as harsh as possible. Today for example the police- just like in the colonial days-ask and arrest people on the basis of having a Kipande. There is need to change this attitude. The police need to serve, protect and defend citizens. They need to create a relationship with citizens and this is a two-way traffic. Justice Ransley drafted a raft of measures to be taken to change things; Kenya may want to keep to this. Government institutions need to resist the idea of being political players, the reason for  a security of tenure is for the inspector general was to give them objectivity and  accountability.

The Constitution 2010 sets a standard to the police service.  They need to be objective, professional and act for the public good. The operational Acts of parliaments have also been drafted to change the operational and work ethics of the police. As if not enough, international  law and best  practices also give sufficient guidelines on how the police should relate with citizens.

Conclusion

The Constitution 2010 is a revolutionary document set on bedrock of human rights. The right to demonstrate, picket and petition should therefore be protected and valued as it is weighted against the other rights. The law contemplates a situation where both the police and the protestors act in mutual respect and work together to ensure that protestors are allowed to protest and none protestors are also free and protected.

By:

Ouma Kizito Ajuong’

Poet (poetic fountain), Lawyer, Advocate of the High Court of Kenya, LLB (Hon.) Kenyatta University, PGD in Legal Practice, KSL