i

MOI UNIVERSITY
SCHOOL OF LAW
FLB 400
RESEARCH PAPER

REALISATION OF THE RIGHTS OF THE TRANSGENDER COMMUNITY:
INCORPORATING THE YOGYAKARTA PRINCIPLES INTO KENYAN LAW
BY
THIONGO ROSEMARY WANJIKU
LLB/46/10

SUPERVISOR

MS. ROSE M. AYUGI

A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE
REQUIREMENT FOR THE AWARD OF BACHELOR OF LAWS (L.L.B) DEGREE OF
MOI UNIVERSITY
MOI UNIVERSITY- ELDORET

APRIL 2014

i

DECLARATION
I, THIONGO ROSEMARY WANJIKU, do hereby declare that this is my original work,
unaided work and to the best of my knowledge, has never been submitted in any other academic
institutions. Where the work of other scholars has been referred to, the same has been properly
referenced.
THIONGO ROSEMARY WANJIKU

LLB/46/10
SIGNED DATED
------------------------- -----------------------------
This thesis has been submitted with my consent:
SUPERVISOR
Ms. Rose M. Ayugi
SIGNED DATED
------------------------- -------------------------------
ii

ACKNOWLEDGEMENT
First and foremost I amthankful to almighty God for His blessings and through my entire life.
I would like to express my sincere gratitude to my supervisor Ms. Rose Ayugi whose guidance
made this work successful.
I would also like to acknowledge my friends Maureen, Patience and Rose Kinyati for their moral
support and encouragement.
Special thanks to Irungu Thiongo for his financial and moral support while conducting the study
and for the care he has shown all through.
Finally and without any negative connotation to the sequence, my sincere gratitude goes to
Moraa Annesser for the support and for being a friend and a sister.
iii

DEDICATION
I dedicate this work to my parents Wangari Thiongo and Thiongo Kireru, my brothers and
sisters for their endless love, support and encouragement. I may not have chosen to be part of
you but have proved worth of best friends and being there when I needed you all most.
iv

LIST OF ABBREVIATION
ECHR: European Convention on Human Rights, 1953
ETC Equal Treatment Act, Netherlands
GID Gender Identity Disorder
HIV/AIDS Human Immunodeficiency Virus / Acquired Immunodeficiency Syndrome
ICCPR: International Covenant on Civil and Political Rights, 1976
ICESCR: International Covenant on Economic Social and Cultural Rights, 1976
KHRC Kenya Human Rights Commission
KNEC Kenya National Examination Council
LGBTI Lesbian, Gay, Bisexual, Transsexual and Intersex
OAU: Organisation of African Unity
SA South Africa
UDHR Universal Declaration on Human Rights
UN: United Nations
UNHCHR: United Nations Human Rights Office of the High Commissioner
v

LIST OF REFERENCES
CONSTITUTIONS
Constitution of the Republic of South Africa, 1996
The Bomas Draft, 2004 (Kenya)
The Constitution of Kenya, 2010
The Constitution of Kenya, 1963 (repealed)
The Constitution of the Kingdom of Netherlands
KENYAN STATUTES
Birth and Death Registration Act, Cap 149 of the Laws of Kenya
Mental Health Act, Cap 248 of the Laws of Kenya
The Basic Education Act, 2013, s 33
The Criminal Procedure Code, Cap 75 of the Laws of Kenya
The Penal Code, Cap 63 of the Laws of Kenya
The Prisons Act, Cap 90 of the Laws of Kenya
FOREIGN STATUTES
Alteration of Sex Description and Sex status Act, 2003 (South Africa)
Births and Deaths Registration Act, 1992 (South Africa)
Civil Union Act, 2006 (South Africa)
Criminal Procedure Act, (South Africa)
Dutch Civil Code, Art 1:28 (Netherlands)
Marriage Act, 1961 (South Africa)
vi

Penal Code, 1950 (Uganda)
Promotion of Equality and Prevention of Unfair Discrimination Amendment Act, 2002 (South
Africa)
The Anti-homosexuality Act, 2014 (Uganda)
The Equal Treatment Act (South Africa)
INTERNATIONAL LEGAL INSTRUMENTS
African (Banjul) Charter on Human and Peoples Rights, 27 June 1981(entered into force 21
October 1986)
Concluding Observations of the Committee on Economic, Social and Cultural Rights regarding
the Peoples Republic of China (including Hong Kong and Macao), E/C.12/1/ Add.107 (13 May
2005) (Committee on Economic, Social and Cultural Committee, 34
th
Session),
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,
1987
Declaration of Montreal, 2006
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities, adopted in New York 18 December 1992
European convention on Human Rights, 1953
International Covenant on Civil and Political Rights, 1976
International Covenant on Economic Social and Cultural Rights, 1976
Resolution adopted by the Human Rights Council 17/19 Human rights, sexual orientation and
gender identity, A/HRC/RES/17/19 14
th
July 2011
The Charter of the United Nations, 1945
The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, General
Comment No. 31 (80), adopted on 29
th
March 2004
vii

The Yogyakarta Principles: Principles on the application of International Human Rights Law in
Relation to Sexual Orientation and Gender Identity, 2007
The Right to the Highest Attainable Standard of Health, General Comment No. 14 (2000)
CESCR.
United Nations Universal Declaration of Human Rights, adopted by General Assembly
Resolution 217(III) of 10
th
December 1948
KENYAN CASES
A.N.N v Attorney General (2013) eKLR, published by the National Council on Law Reporting
R.M v Attorney General (2010) eKLR, published by the National Council on Law Reporting
Mbugua Ithimbu v Kenya National Examination Council (pending in court)
FOREIGN CASES
Barcelona Traction, Light and Power Company Limited, Second Phase, Judgment, ICJ Reports
1970
Bellinger v Bellinger (EWCA Civ 1140 [2001].
Christine Goodwin v The United Kingdom, (2002) 35 EHRR 18
Dudgeon v U.K. (1981) 4 E.H.R.R 149
Karner v Austria, (2003) 38 E.H.R.R. 24
Lawrence v Texas (2003) 539 U.S. 558; 123 S. Ct. 2472
Minister of Home Affairs and Another v Fourie and another (Doctors for Life International and
Others, amici curiae); Lesbian and Gay Equality Project and others v Minister of Home Affairs
and others, (2005) ZACC 19
National Coalition for Gay and Lesbian Equality v Minister of Justice, (1998) ZACC 15, 1999
(1) SA 6 (CC)
viii

R v Oakes (1986) 1 S.C.R. 103
Salgueiro de Sila Mouta v Portugal, (2001) 31 E.H.R.R 47
Sunil Pant & Others v Nepal Government and others, Writ No. 917 of the year 2064 BS (2007
AD), Supreme Court Division Bench, 2007
Toonen v Australia Communication no. 488/1992
Van Kuck v Germany, 2003-VII Appl. 35968/97
Young v Australia, Communication No. 941/2000, U.N. Doc. CCPR/C/78/D/941/2000 (2003)
ix

TABLE OF CONTENTS
DEDICATION ............................................................................................................................ i
ACKNOWLEDGEMENT .......................................................................................................... ii
DEDICATION.......................................................................................................................... .. ..iii
LIST OF ABBREVIATIONS.................................................................................................... iv
LIST OF REFERENCES ............................................................................................................v
TABLE OF CONTENTS................................................................................................................ix
CHAPTER ONE: RESEARCH PROPOSAL ..........................................................................1
1.0: Introduction ......................................................................................................................1
1.1: Background ......................................................................................................................2
1.2: Problem Statement ............................................................................................................5
1.3: Study Justification ....................................................................................................... ....6
1.4: Objectives .........................................................................................................................7
1.5: Hypothesis ........................................................................................................................7
1.6: Conceptual Framework .....................................................................................................8
1.7: Theoretical Framework ................................................................................................... 10
1.8: Research Questions ......................................................................................................... 13
1.9: Literature Review ........................................................................................................... 13
1.10: Methodology................................................................................................................. 16
1.11: Chapter Breakdown ...................................................................................................... 16
CHAPTER TWO: INTERNATIONAL LEGAL FRAMEWORK ....................................... 18
2.0: Introduction .................................................................................................................... 18
2.1: European Convention on Human Rights ......................................................................... 20
2.2: United Nations Human Rights Framework ...................................................................... 27
2.2.1: Introduction.............................................................................................................. 27
2.2.2: United Declarations on Human Rights (UDHR, 1948 ............................................... 28
x

2.2.3: International Covenant on Civil and Political Rights (ICCPR), 1976 ........................ 31
2.2.4: International Covenant on Economic, Social and Cultural Rights (ICESCR), 1976 ... 34
2.3: African Charter on Human and Peoples Rights .............................................................. 37
2.4: Un Resolution Relating to Sexual Orientation and Gender Identity ................................. 39
2.4: The Yogyakarta Principles on the Application of International Human Rights Law in
Relation to Sexual Orientation and Gender Identity ............................................................... 41
2.5: Chapter Summary .......................................................................................................... 45
CHAPTER THREE: THE LEGAL FRAMEWORK AND THE PLACE OF THE
TRANSGENDER IN THE KENYAN SOCIETY .................................................................. 47
3.0: Introduction .................................................................................................................... 47
3.1: Religious and Moral Discourses ...................................................................................... 50
3.2: The Legal Framework of the Transgender Rights in Kenya ............................................. 52
3.2.1: The Kenya Penal Code ............................................................................................. 53
3.2.2: The Constitution of Kenya, 2010 .............................................................................. 56
3.3: The Concept of the Limitation of Rights ......................................................................... 65
3.4: Judicial Intervention on the Transgender Cases ............................................................... 69
3.5: Chapter Summary ........................................................................................................... 89
CHAPTER FOUR: COMPARATIVE STUDY ON TRANSGENDER RIGHTS IN OTHER
JURISDUCTIONS .................................................................................................................. 91
4.0: Introduction .................................................................................................................... 91
4.1: Criminalisation of Same Sex Acts in African Countries .................................................. 93
4.2: South Africa ................................................................................................................... 99
4.3: LGBTI Community in Western Countries ..................................................................... 107
4.4: Netherlands ................................................................................................................... 108
4.5: Chapter Summary ......................................................................................................... 114
CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS ................................... 116
5.0: Introduction .................................................................................................................. 116
5.1: Conclusion .................................................................................................................... 117
xi

5.2: Recommendations......................................................................................................... 123
5.2.1: Education and Sensitization of the Public ............................................................... 123
5.2.2: Review of the Education Syllabus by the Ministry of Education ............................. 124
5.2.3: Access to Health Care Services .............................................................................. 124
5.2.4: Promote and Respect for Human Rights ................................................................. 125
5.2.5: Comprehensive Equality and Non-discrimination Legislation ................................. 125
5.2.6: Expand the Constitutional Non-discrimination Standards ....................................... 126
5.2.7: Implement the International Legal Instruments and the Policies guided by
Recommendations of the Yogyakarta Principles ............................................................... 126
5.2.8: Have the Interests of LGBTI Captured in a Government Ministry Probably the
Ministry of Gender ........................................................................................................... 127
5.2.9: Protection of Sexual Minorities under the UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992 ..................... 127
BIBLIOGRAPHY ................................................................................................................... 129
1

CHAPTER ONE: RESEARCH PROPOSAL
1.0: INTRODUCTION
Some say that sexual orientation and gender identity are sensitive issues. I understand
this notion because like many generations, I did not grow up talking about these issues
but I learnt to speak out because lives are at stake and because it is our duty under the
United Nations Charter and the United Declaration of Human Rights to protect the rights
of everyone, everywhere.
1

The term intersex or transgender has not been legally defined in Kenyan laws including the
Constitution of Kenya, 2010. In addition the Birth and Deaths Registration Act defines the term
sex to include only male and female
2
. A transgender person is one with a gender identity that is
not consistent with their assigned biological gender. It simply means one who is born of one
biological sex but does not feel like they fit in it. He or she therefore identifies themselves with
the other gender.
3

The San Francisco Human Rights Commission defines transgender as an umbrella term that
includes male and female cross-dressers, transvestites, female and male impersonators, pre-
operative and postoperative transsexuals, and transsexuals who chose not to have genitalia
reconstruction and all persons whose perceived gender and anatomic sex may conflict with the
gender expression.
4

The transgender persons are commonly mistaken for homosexual people. It is therefore
important to differentiate between transgender and homosexuals. Transgender is used as an

1
Secretary General, Ban Ki-Moon, Combating Discrimination Based on Sexual Orientation and Gender Identity (7
March 2012), http://www.ohchr.org/EN/Issues/Discrimination/PagesL/BGT.aspx at 23 August 2013, 3:43 pm
2
The Birth and Deaths Registration Act, Cap 149, Form No. 1 Birth Registration and Form 6 Death Registrations.
3
http://www.dinmag.com/ at 2August 2013, 11.05am
4
San Francisco Human Rights Commission, Investigation into Discrimination against Transgendered People
(1994),
http://www.hawaii.edu/hivandaid/Tg/Report_investigation_into_Discrimination_Against_Transgendered_People-
ed.pdf. at 3 September 2013, 12.06 pm
2

umbrella term for the transgender and transsexual community. However, a transsexual is one
who identifies psychologically as one gender/ sex other than the one to which they were assigned
at birth.
5
Homosexuality is romantic attraction, sexual attraction or sexual behaviour between
members of the same sex or gender.
6

This study gives an insight of the meaning of transgender, the rights if any that such persons
enjoy, as well as the challenges they face in the Kenyan society. It will also look into the
possibility of incorporating the Yogyakarta Principles in Kenya to promote and protect the
transgender rights.
1.1: BACKGROUND
Globally, there have been reports of transgendered people being killed. The organisation,
Transgender Day of Remembrance, estimates that at least one transgender person is killed every
month
7
. The transgender persons are subjected to violence of all sorts. For example, early this
year a transgendered man in Thika was humiliated when he was stripped by police officers in an
attempt to identify his gender
8
. Another example is in Dublin where a teenager attacked a woman
he mistook for a gay man because of her hairstyle.
9

Worldwide, people are subject to persistent human rights violations because of their actual or
perceived sexual orientation and gender identity.
10
The human rights violations are manifested in
different forms such as; denial of right to life, arbitrary arrests, inhuman and degrading

5
http://www.plannedparenthood.org/heartland/transgender-identity-31212.html at 2August 2013, 11.08am
6
ibid
7
Transgender Day of Remembrance: About the Day of Remembrance,
http://www.gender.org/remember/day/what.html at 26October 2013 10.05 am
8
A.N.N v Attorney General (2013) eKLR; the petitioner alleged that the police officers stripped him naked in order
to identify his gender in the full glare of the media.
9
Dublin Interdependent Media, http://www.independent.ie/irish-news-26343649.html at 7November 2013, 12:49
pm
10
Michael O Flaherty and John Fisher, Sexual Orientation Gender Identity and International Human Rights Law:
Contextualising the Yogyakarta Principles(2008) Human Rights Law Review 8, 207-248
3

treatment, torture, discrimination, denial to access of proper health facilities and right to privacy
and dignity.
In prison their life is in no way protected and these people are vulnerable and susceptible to
sexual abuse. There have been allegations by convicts that they have been sexually abused by the
prison wardens or their fellow inmates. They are raped and infected with HIV/AIDS and other
sexually transmitted diseases for example, the allegations in the case of R.M. v Attorney
General.
11

This case although decided under the Old Constitution, brought global attention towards the
transgender community and mostly with regard to homophobic sentiments even though he did
not succeed with his petition. The petitioner in this case sought for several prayers inter alia, a
declaration that Sections 2b and 7 of the Births and Death Registration Act was inconsistent with
Section 82 of the then Constitution in so far as it offends the principal of equality and non
discrimination. He also prayed for a declaration that the intersexual in Kenya have suffered, are
suffering and will continue to suffer lack of legal recognition and protection under the Kenyan
statutes.
In response to above prayers the judge was satisfied that the petitioner ambiguous genitalia did
not negate the fact that his biological sexual constitution had already been fixed at birth. While
the Act requests for particulars of the sex as either male or female, it does not exclude the
petitioner as an intersex person because he falls within either of the two.
The judge argued that it is not within the mandate of the court to expand the meaning of the term
transgender when the legislature in Kenya has not done so. However I hold the opinion that

11
(2010) eKLR
4

when there is a gap in the statute, it is upon the role of the court to fill in that gap. In addition, the
basic idea is that there are only two genders; male and female and that there is no place for a
third gender in the Kenya society. The transgender are hence mistreated for confusing the
existing ideas.
It is noteworthy that it is hard enough to survive as a gay or lesbian in Kenya and living as a
transpersonal in Kenya and trying to access medical care brings a whole different level of
complexity. Public hospitals deny medical treatment to transgender persons and the government
offices refuse to change their identification.
12
It is with great concern that these people cannot
secure employment due to the contrast in their appearance and their certificates.
On 6

November 2006 a distinguished group of international experts on human rights met in
Yogyakarta, Indonesia to outline a set of international principles relating to sexual orientation
and gender identity. This was in response to the pattern of abuse and human rights violations
against the transsexuals community due to sexual orientation and gender identity. This resulted
in the Yogyakarta principles; a universal guide to human rights which affirms binding
international legal standards with which all states must comply. They promised a different future
where all people born free and equal in dignity can fulfill that precious birthright.
13

In the course of this study I will look into the possibility of incorporating the Yogyakarta
Principles in the Kenyan laws in an attempt to curb the human right violations experienced by
the sexual minorities as result of their sexual orientation and gender identity.


12
Velvet Park Media Trans* in Kenya: A woman Tells Her story, (10 April 2012),
http://www.velvetparkmedia.com/blogs at 27 October 2013, 12.05 pm
13
The Yogyakarta principles, http://www.yogyakartaprinciples.org/ at 13November 2013,2.25p.m
5

1.2: PROBLEM STATEMENT
In recent years, the Lesbian, Gay, Bisexual, Transsexual and Intersex (LGBTI) agenda and more
specifically the transgender rights realisation has elicited heated debate in Kenya punctuated with
homophobic sentiments. Those who are born transgender are often mistaken for homosexuals
and hence socially unaccepted and they are discriminated against in society. Audrey Mbugua
shares a story of her transgender friend who her friends perceived her as gay and then introduced
her to homosexual men and labelled a bottom.
14

The law has not made any provision to specifically address the human rights violations visited by
the transgender community. The Birth and Death Registration Act only requests for particulars of
a childs sex either male or female. I hold the view that this should be reviewed to include
particulars of a transsexual child.
15

In addition, the human rights standards against discrimination set out in the Constitution
16
should
include discrimination on the grounds of sexual orientation and gender identity. The study
assesses the fact that Kenya does not have a comprehensive legislation to protect transgender
community.
In addition, the government offices are not willing to change the identification documents of
these persons and hence cannot secure employment e.g. birth certificates, national identity card,
travel and academic documents. On 26March 2013, Audrey wrote a letter to the Immigration
Offices requesting that;

14
Audrey Mbugua, The Evils of Transgender Stereotyping, http://www.transgenderkenya.com/ at 17 November
2013, 6.08 pm
15
Supra n.2
16
The Constitution of Kenya, 2010, Art.27(4)
6

...you remove the M gender marker in my passport as it was a major impediment in
my social and occupational functioning. This significantly compromises my security in
airports, bank in addition to raising suspicion and embarrassment...
17

She narrates her sad story that she had to get the assistance of the directors to get her documents
processed. However this raises the question of what happens to other transgender persons
applying to change their passport but cannot get the assistance of the directors. This calls for a
change in the attitude of the society towards the transgender. They should not only be legally
accepted but also socially accepted. Their problems begin at a tender age; their parents reject
them and mistake them for homosexuals and become more complex as they age. They face
rejection and stigma from their friends at school and have to live as the laughing-stock of their
society.
It is because of the above issues and this hostile environment that very few are willing to bear
with such kind of rejection and most drop out of school as they cannot fit in this society that
views them as outcasts. Due to lack of basic education they shy away and cannot secure well
paying jobs and end up living in deplorable conditions.
1.3: STUDY JUSTIFICATION
This paper seeks to highlight the need for more dialogue on the rights of the transgender and
especially a specific legislation that protects and promotes their rights. Due to lack of a specific
and comprehensive legislation on the rights of sexual minorities in Kenya, violation of their
human rights has been very rampant. To this end stigmatization, discrimination and murder of
these vulnerable people is the order of the day.

17
Audrey Mbugua, The Right to Fair Administrative Action among Transgender: Challenges and Recommendations,
http://www.transgenderkenya.com/index.php?option=com at 17 November 2013, 4.56 pm
7

Therefore to human rights enthusiasts this research seeks to assert the importance of human
rights protection on the transgender community. To the state, the paper seeks to assert the
importance of a specific legislation on the transgender that is guided by human rights pillars of
equality and non-discrimination, one that protects the rights of all human beings and their
dignity.
1.4: OBJECTIVES
The overall objective guiding this study is to establish the possibility of incorporating the
Yogyakarta principles in Kenyan laws and the inclusion of sexual orientation and gender identity
as one of the grounds that need constitutional protection against discrimination.
Among other ancillary objectives that the study aims to achieve include;
1. To examine whether the transgender community has been stigmatised and discriminated
against due to the lacuna in Kenyan law not recognising gender diversity as a ground of
discrimination.
2. To understand the experiences of the transgender community and the disadvantages they
undergo due to their sexual orientation and gender identity.
3. To examine the provisions in international legal instruments that protects and promotes
the rights of the transgender and how the same has been implemented.
1.5: HYPOTHESIS
In respect of the foregoing, the study intends to test the following hypotheses;
1. That there is a gap in the Kenyan legislation and that it does not capture gender identity
and sexual orientation as grounds for discrimination.
8

2. That if the international law provisions touching on the rights of the transgender which is
applicable in Kenya is applied in our courts, it will ensure the safety of these sexual
minorities.
3. That the Yogyakarta principles if used as a soft law or incorporated in the Kenyan laws,
will help curb the human rights violations visited by the transgender and improve their
safety.
1.6: CONCEPTUAL FRAMEWORK
This study is based on the concept of human rights from a diversity perspective, and examines
how to tackle the discrimination visited by the transgender community. Our government should
be committed to promote and protect persons of different diversity, equality and non-
discrimination. The issues of human diversity are broad in the senses there are different identity
groups including disabled persons, ethnic minorities, children, older people but this study is
concerned with persons of diverse gender identities and in doing so we cannot fail to mention
those of diverse sexual orientation.
In addition it is also based on the concept of equality, which looks into a unified human rights
framework that is a holistic approach which, while bearing in mind the specific different strands
of equality and the different types of disadvantages visited by LGBTI groups seeks more
effective implementation of the right to equality.
Transgender individuals face intense discrimination in different areas of life and until recently in
Kenya they have had no legal protection. This framework attempts to explore the tension
between efforts to make specific identity groups visible to policy makers and efforts to address
issues of difference and discrimination in a more integrated way. In Kenya the experts of the new
9

Constitution Review process did not seem to contemplate the issues of persons of diverse sexual
orientation and gender identity. However the experts involved in Constitutional Review Process,
2004 in drafting the Bomas Draft had in mind the diversity of the people and that the state ought
to promote and protect the cultures of its communities. However, the Bill of Rights of that Draft
later explicitly prohibited same-sex marriages and only allowed marriages of persons of opposite
sex.
18

In Kenya there is no specific statute explicitly providing for the transgender rights or prohibiting
discrimination on grounds of gender identity and sexual orientation. It is only in the Constitution
2010 that the concept of equality and non-discrimination standards is captured in the Bill of
Rights. It provides that the rights and freedoms are inherent and belong to each individual by the
fact that they are human beings.
19
Thus the only requirement for the enjoyment of this right is for
one to be a human being. These rights are not granted by the state; the law and governments only
affirm this reality.
20
The human rights and freedoms touching on equality and non-
discrimination have been highlighted in the constitution, and the human rights standards against
discrimination have been set thereunder. It provides to the effect that everyone is equal before
the law and has the right to equal protection of the law.
21

However sexual orientation and gender identity have not been included in the list, but I hold the
view that this Article of the Constitution should be interpreted using a wider sense to include
these grounds. In interpreting discrimination on ground of status of sex we should then include

18
The Bomas Draft, 2004, ss 12 & 41
19
The Constitution of Kenya, 2010, Art. 19
20
J. Osogo Ambani and M. Kiwinda Mbondenyi, The New Constitutional Law Of Kenya: Principles, Government
and Human Rights (2012) pp 155, Claripress Ltd Nairobi.
21
The Constitution of Kenya, 2010, Art. 27 (1) Every person is equal before the law and has the right to equal
protection and equal benefit of the law. (4) The state shall not directly or indirectly against any person on any
ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability,
religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or
indirectly against another person on any of the grounds specified or contemplated in clause (4)
10

discrimination on persons of diverse sexual orientation; gays, lesbians and bisexuals. In addition
in including those discriminated on grounds of health status maybe we should also include the
intersex and the transsexual, who are persons diagnosed with Gender Identity Disorder (GID).
The LGBTI groups have therefore been classified as persons on the axis of oppression and have
not only been discriminated against in the modern society but also forced to remain covert about
their sexual orientation and gender identity.
22

Homophobic sentiments have been a barrier to the safety and well being of the LGBTI
community and the fight for equal rights based on sexual orientation and gender identity have
been a long time even but have only been recognised by a few states. Some victims advocate for
a separate legislation that explicitly protects and promotes their rights.
23

The inherent right of human beings to be free from all forms of discrimination is a human rights
and it motivates an analysis of disadvantage affecting the LGBTI groups beyond that which
arises as a result of discernable acts of discrimination. This right has a broader scope, when
compared with the traditional approach in most national legal systems and its content is richer
than that of a right to non-discrimination.
1.7: THEORITICAL FRAMEWORK
The right to equal treatment and equal protection of the law is an inherent human right. Equality
often arises when a person asks to be treated as an individual without regard to any category.
24

There are different categories in the society and even when the governments and the subjects are

22
Mary jean Denton, The Lived Experiences of Lesbians, Gays, Bisexual and Transgender Educational Teachers,
(2009), http://www.conservancy.umn.edu/bistream/51938/1/denton=umn-0130E-10375.pdf at 3 December 2013,
6.07 pm
23
ibid
24
Supra n.20
11

adopting a Constitution, they may recognise some of these categories which may be deemed
vulnerable.
There are several approaches adopted to explain the need of equality in the society. The UK
discrimination law adopted the equality of opportunity and it is on this notion that the
legislation looked into the issues of sexual discrimination and equal pay. The citizens urged the
government to introduce effective measures to discourage discriminatory conduct and to promote
genuine equality of opportunity for both sexes.
25
From a procedural point of view the equal
opportunity requires removal of obstacles to the advancement of women or minorities.
Others advocate for formal equality, which requires that if two people are being treated or are
to be treated differently there should some relevant difference between them. Otherwise in the
absence of these differences they should be treated alike.
26
However this has been criticised by
the likes of Peter Westen, who argues that nothing can be like and so like treatment does not
exist. If there are people to be treated alike it is because of some moral rule which determines
which people should be treated alike.
27

Others argue for the principle of equality as a principle of universal Humanity that since like
should be treated alike then it follows that since human beings share a common aspect of
humanity they should be treated alike. It is on this principle that evolves the fundamental human
rights and it would then not make sense to speak of universal humanity without considering the
concept of equality.
28
However Peter Westen criticises this approach, arguing that the underlying

25
Nicholas Bamforth et al. Discrimination law: Theory and Context (1
st
ed, 2008), Published by Sweet and Maxwell
26
J.R. Lucas, Against Equality (1965), XL Philosophy
27
Peter Westen, The Empty Idea (1982) 95 Harvard L.R. 537
28
Supra n.25
12

value is the normative value in that universal humanity calls for human beings to be treated
humanely for the mere fact that they are human beings but nothing more.
29

There are critical feminist theories that have dealt with issues of discrimination on the grounds of
gender. The same theory could be used to explain the discrimination on transsexuals. Feminists
challenge the law for discriminating against women by the mere fact of their gender. Katharine
Barlette, argues on dominance theory that one reason why women are discriminated against is
due to the fact that they are unlike men.
30
Some philosophers argue on the difference theory that
women have distinctive traits and values, which should be affirmatively valued in the public and
private realms of live.
31

One can therefore adduce that the LGBTI community is discriminated against because they are
not alike with the rest of the members of the society. This may explain the reason as to why these
sexual minorities are treated differently. It may be due to their behaviours in that it is not in
conformity with the morality of the society or may be due to their gender identity disorder.
From the above, we should have a clear understanding of the experiences of the transgender in
the current societies and the lives they live in and the assumption the society makes. One could
argue that the heterosexuals discriminate the transsexuals since they are different from them.
J illian Todd argues that not until one is a transsexual one cannot understand the experiences and
the pain these people go through and the system of discrimination these people have to go

29
Supra n.27
30
Katharine T. Barlette, Gender Law(1994) 1 Duke Journal of Gender Law & Policy 1-20
31
Supra n.20
13

through. He further argues that justice depends on whose ox is being gored, and the corollary is
that no ox is gored until it is your own.
32

1.8: RESEARCH QUESTIONS
1. What are the human rights violations visited by the transgender persons in Kenya?
2. Can the human rights standards against discrimination be interpreted to include sexual
orientation and gender identity?
3. Are there provisions that protect and promote the transgender rights in our municipal and
international law, and if they exist how have they been implemented?
4. Can the Yogyakarta principles be implemented in the Kenyan law whether as a soft law
or a hard law to improve the safety and the protection of the transgender rights?
1.9: LITERATURE REVIEW
There are a few myths created about homosexuality and gender identity in Africa. Stephen O.
Murray and Will Roscoe argue that homosexual acts and practices are from colonial heritage and
were forced on Africans by Western Bourgeois. They argue that Africans were not
heteronormative and these acts are foreign and have no origin in Africa. I tend to disagree with
this argument in that the issues relating to transsexuals and touch on ones gender identity and
sexual orientation cannot be imposed on someone and it is all about self awareness. It is our self
feeling of being a male and female, even though it differs from the gender assigned at birth.
33


32
Jillian Todd Weiss, The Gender Caste System: Identity, privacy and Heteronormativity (2001) 10 Law
&Sexuality 12 (Tulane Law School)
33
Stephen O. Murray and Will Roscoe (Eds), Boy-Wives and Female-Husbands: Studies of African Homosexualities
(1998), New York: St. Martin Press.
14

The Human Rights Commission of Francisco argues that gender identity is the deeply felt
knowledge of an individual that he or she is male or female; in transgendered persons, the gender
identity and the anatomic sex may not be in alignment. It involves one inner feeling whether as a
male and does not conform to the sex one was assigned at birth.
34

I am inclined to agree with the commission in that our sense of being a male or female is
something taken for granted. Those of us who have not experienced the changes that come along
with being a transgender can only imagine what it feels like to lose it. To make it worse how it
would feel to lose this sense of ourselves and then be discriminated against.
Several authors have also written about the challenges and human rights violations experienced
by the transgender community. Prof. Makau Mutua argues that the Constitution should not
protect only those who we like and leave out those who we feel objectionable or otherwise
unpopular. If ones gender identity subjects him/her to discrimination or ridicule in the society
then that must be a proper ground for Constitutional protection. He holds the view that the
Constitution should then protect such people from the tyranny of the state and discrimination by
fellow humans.
35

To this end I agree with Makau Mutua that those who because of their situation are vulnerable
and are likely to be discriminated against should have their rights captured in the Constitution.
Under the social contract theory mentioned above, the people came together and agreed to enter
into agreement to surrender their rights to a body (government) which should then protect them.
Those who did not participate in this contract; the old and children, were represented by those

34
San Francisco Human Rights Commission, Investigation Into Discrimination Against Transgendered People
(1994)41
http://www.hawaii.edu/hivandaid/Tg/Report_investigation_into_Discrimination_Against_Transgendered_People-
ed.pdf at 3 September 2013 12.06 pm
35
Makau Mutua, Why Kenyan Constitution must protect Gays Sunday Nation, 24October 2009
15

who participated. Therefore the constitution should capture the rights of everyone, whether in the
face of society are acceptable or not.
In her thesis Mary Jean Denton also agrees with the above fact that most of the countries or
states do not constitutionally provide protection against harassment or discrimination based on
actual or mistaken sexual orientation. LGBTI persons often do not enjoy the same economic and
political stature as their heterosexual counterparts.
36

Kenya Human Right Commission also argues that the problems visited by the LGBT are as a
result of failure to appreciate the human diversity in sexual orientation and gender identity. It
argues that there is a deliberate failure by the state to protect sexual minorities both in policy and
legislation.
37
I agree with this notion to the extent that our law merely reflects the morality of the
society and the biological opinion as regards the growth of human beings. As a result it rejects
transsexual claims to social and legal recognition hence denying them their right to human
dignity and self-determination.
To emphasis on this view, J illian Todd quotes Michelangelo Signorile, who argues that many
heterosexuals do not understand the closet simply because they have never been in it. This is so
because heterosexuality is the order of things and many think they never discuss it. They
therefore feel that the gays, lesbians and transsexuals are going too far discussing about their
sexuality. What they do not actually realise is that they routinely discuss the aspects of their

36
Mary Jean Denton The Lived Experiences Of Lesbians/Gay/Bisexual/Transgender Educational Leaders (2009),
http://www.conservancy.umn.edu/bistream/51938/1/denton=umn-0130E-10375.pdf at 3December 2013, 6.07 pm
37
The Kenya Human Rights Commission, The Outlawed Amongst Us: The Study of the LGBTI Communitys Search
for Equality and Non-discrimination in Kenya (2011), http://www.khrc.or.ke/component/docman/doc-details/14-the-
outlawed-amongst-us.html. at 26 October 2013, 5.19 pm

16

sexuality; telling a friend of a romantic vacation with or a lover or telling the boss what a rough
divorce they are going through.
38

1.10: METHODOLOGY
There will be heavy reliance on use of secondary sources such as library materials which include
the following inter alia; articles, legal journals, text books, constitution of Kenya and web pages.
Secondary sources provide sufficient literature for analysing transgender in broad. Due to time
constraints it will not be convenient to collect first hand information.
1.11: CHAPTER BREAKDOWN
CHAPTER TWO
It deals with the legal provisions and practices around the world as provided under international
instrument touching on the transgender rights. It also looks into details the Yogyakarta principles
and their importance.
CHAPTER THREE
It will discuss in details the human rights violation experienced by the transgender community
due to their sexual orientation and gender identity in Kenya. It examines the Kenyan position on
the rights of the LGTI both socially and legally. It will also assess the applicability of the
Yogyakarta principles in Kenya in attempting to protect and promote the rights of the
transgender.



38
Supra n.32
17

CHAPTER FOUR
It will discuss the municipal law of South Africa and United States. It will also look into the
practices, provisions and institutions put in place to secure a conducive and safe environment for
the transgender community.
CHAPTER FIVE
This is the final part of the study and covers the conclusion from the findings gathered and
recommendations.
18

CHAPTER TWO: INTERNATIONAL LEGAL FRAMEWORK
2.0: INTRODUCTION
International legal instruments take the form of a treaty (also called agreement, convention, and
protocol) which may be binding on the contracting states. The binding treaties can be used to
force government to respect the treaty provisions that are relevant for the human rights of the
LGBTI community. The non-binding instruments such as declarations can be used to shape the
domestic policy of a state.
39
Although the binding force of human rights obligations must rest
ultimately in treaty or custom, the inspiration for these obligations lies in morality, justice,
ethics or a simple regard for the dignity of mankind.
40

International human rights law is applicable to everyone including those with different sexual
orientation and gender identity.
41
Discrimination on grounds of sexual orientation and gender
identity- though increasing day by day and the victims are mistreated or otherwise lose their lives
due to their sexual orientation- prohibition on these grounds is not expressly provided for under
international law. However certain groups of people who are vulnerable and have potential of
their rights being violated have a separate document adopted to protect them. For instance, the
Covenant for the Elimination of Racial Discrimination prioritizes fight against racism and has a
supervisory and reporting mechanism to hold the contracting member states to account.
42

In 2006, The UN Special Rapporteurs report indicated that the situation of the LGBTI members
has drawn attention in two folds. First it concerns those who have been killed because of the

39
University of Minnesota Human Right Library, Study Guide: Sexual Orientation and Gender Identity,
http://www1.umn.edu/humanrts/edumat/studyguides/sexualorientation.html at 9 December 2013, 5.19 pm.
40
Martin Dixon, International Law (6
th
ed, 2007) 341, Oxford University Press Inc., New York.
41
Ella J.J. Weggen, The Yogyakarta Principles Soft Law: Sexual Orientation and Gender Identity in International
Human Rights Law (2009), http://www.ypinaction.org/files/01/57/thesis-weggen-yogyakarta-principles-soft-law.pdf
at 29 November 2013, 2.17 pm.
42
Nicholas Bamforth et al. Discrimination Law: Theory and Context (1
st
ed, 2008), Sweet and Maxwell Ltd of 100
Avenue Road London.
19

mere fact of their sexual identity, often by agents of the state, and their murders go unpunished.
Secondly, it involves the prosecution with a vengeance, directed not against the murders but
against those who engage in consensual practices in private. He indicated that there were reports
of such individuals who have been sentenced to death by stoning.
43

It is therefore important to consider whether the LGBTI group is adequately protected under the
international human rights law or if they require a separate document that specifically prohibits
discrimination on the grounds of sexual orientation and gender identity. It is noteworthy that the
international human rights law and the lesbian and gay rights agitations have grown together
since the end of World War II in 1945. Both are still growing and evolving from western
initiatives to worldwide presence.
44

The founding documents of human rights law are the UN Charter 1945, United Declaration of
Human Rights 1948, European Convections on Human Rights, International Covenant on Civil
and Political Rights, International Covenant on Economic Social and cultural Rights and African
Charter on Human and Peoples Rights (Banjul). As noted previously, none of these instruments
expressly prohibit discrimination on grounds of sexual orientation and gender identity neither do
they state whether those bearing these characteristic should be accorded any special protection.
45

However in the past few years the international community has been concerned with the
increased risk of human rights abuse on the persons of diverse sexual orientations and gender
identities. For instance in November 2006, in response to a well documented pattern of abuse, a
panel of international human rights experts met in Yogyakarta, Indonesia and came up with a set

43
Oral presentation of report E/CN.4/2006/53 by the Special Rapporteur to the Human Rights Council, 19
September 2006, http://www.un.org/webcast/unhrc/archive.asp?go=060919 at 4 December 2013, 12.19 pm.
44
Douglas Sanders, Sexual Orientation in International Law, http://ilga.org/ilga/en/article/1078 at 3December 2013,
4.09 pm.
45
Ibid
20

of principles relating to the equal treatment of persons of diverse sexual orientation and gender
identities.
46
Later in June 2011, the Human Rights Council adopted a Resolution 17/19 on human
rights, sexual orientation and gender identity. Though approved by a narrow margin, it
significantly, received support from Council members from all regions.
47

The next section of this work will therefore be dedicated to looking at the provisions in these
instruments that have been or can be utilized to ensure protection of the LGBTI groups from
discrimination of all kinds. Later in the chapter we will analyse the Yogyakarta principles and
their importance.
2.1: EUROPEAN CONVENTION ON HUMAN RIGHTS, 1953.
48

The European Convention on Human Rights is an international treaty to protect human rights
and fundamental freedoms in Europe; regional international instrument in Europe. Any person
who feels his or her rights have been violated under the convention by a state party can take the
case to the European Court of Human Rights (ECHR).
49
Even though this legal instrument is not
binding in Kenya it is important to understand how it has dealt with issues touching on
transgender persons and maybe the same can be used to shape our domestic policy.
Until 1967 discrimination on the basis of gender identity and sexual orientation was permitted in
western societies and homosexual acts were criminalized in England and Wales. It took the case

46
G-Kenya Trust, My Way Your Way or the Right Way? Implementing the Yogyakarta Principles (2010),
http://www.urp.../humanrightslaw.org/ at 27 January 2014, 10.45 am.
47
Resolution adopted by the Human Rights Council 17/19 Human rights, Sexual Orientation and Gender Identity,
A/HRC/RES/17/19, 14July 2011.
48
European Convention on Human Rights, drafted in 1950(entered into force on 3 September 1953). All council of
Europe member states are party to the convention and new members are expected to ratify the convention at the
earliest opportunity
49
Kevin Boyle, The European Experience: The European Convention on Human Rights,
http://www.upf.pf/IMG/pdf/11-DH-Europen-Experience.pdf at 27 January 2014, 11.07 am.
21

of Dudgeon v United Kingdom
50
to decriminalize some of these homosexual acts. The case was
heard and decided by the European Court of Human Rights which ruled that the law had violated
Dudgeons rights in respect of his private life. The court argued that the legislation which was
then in place to criminalize male homosexual acts in England violated the ECHR. It is important
to note that since the European Convention on Human Rights
51
did not have a general equality
provision it was necessary to find a specific right in the Convention that had been denied.
52

Issues concerned with sexual orientation and gender identity have been litigated before the
European Court of Human Rights under Article 8 of the European Convention on Human Rights
which provides that;
8 (1) everyone has the right to respect for his private and family life, his home and his
correspondence.
(2) there shall be no interference by a public authority with the exercise of this right
except such as in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well being of the country, for
the prevention of disorder or crime, for the protection of health or orals, or for the
protection of the rights and freedoms of others.
53

Following this decision in the Dudgeon case, one can then argue that the transgender persons are
entitled to enjoy their private life without any interference from members of the public or police
officers. This is more important especially where such victims are stripped naked by the public to
identify their gender. I hold the view that the society has no business in the private life of an
individual as long as his actions do not injure the lives of others. Therefore interference in ones

50
(1981) 4 E.H.R.R 149
51
The European Convention on Human Rights (ECHR), drafted in 1950 (entered into force on 3
rd
September 1953)
52
Supra n.44
53
European Convention on Human Rights, 1953, Art 8
22

private life amounts to a violation of ones privacy and the injured party can claim for
compensation.
54

The existence and the extent of right to privacy is a controversial issue just as the issue on
transsexuality is controversial. In my opinion gender and sex are most personal and private
issues that the society should not interfere. Then the question that arises is what private life is
and what acts should be termed to fall within the sphere of private life? Should what is done
behind curtains and in private places be brought to the public domain or would that amount to
violation of right to privacy?
Some scholars define the right to privacy as the right to be let alone the most comprehensive of
rights and the right most valued by civilized men. There is a need to strike a balance, in that a
society where there is total lack of privacy would be intolerable but then again in a society where
there is a total privacy would be no society at all as people would do as they wish.
55
The idea of
privacy and private life should not be limited to a narrow explanation and that it does not
countenance the specious argument that privacy refers to whatever each person wishes to do with
the shades drawn. In fact there are so many things that we do behind curtains and are not
permitted either socially or even legally.
In a nutshell privacy does not reside within our actions but in our selves, in that a private life
refers to the idea that each one of us has our own individual. It is the private self that we are
allowed to create as we will, within the provision of the law and the government power and

54
For instance in the case of R.M. v Attorney General (2010) eKLR, the petitioner awarded a sum of ksh. 500,000
for violation of his fundamental right to protection against inhuman and degrading treatment and in A.N.N v
Attorney General (2013) eKLR, the petitioner was awarded a sum of ksh 200,000 for violation of his rights to
privacy and human dignity.
55
Supra n.41
23

which the society has no right to deny us.
56
When we talk about transsexualism it is all about
ones inner feeling that they dont belong to the gender they were assigned at birth but feel that
they belong to the opposite gender. It is not about ones action but what he/she feels it then
follows that his private life should be respected.
The argument on violation of privacy rights was later adopter in 1999, in the case of Salgueiro de
Sila Mouta v Portugal
57
, the court found a breach of Article 8 of ECHR in a case where a man
had lost custody of his child on the basis of homosexuality. He had been granted parental access
only on the condition that he hides his orientation. In this case the court noted that the denial of
access on the part of the gay father was based on sexual orientation and it ruled that this was a
distinction which cannot be tolerated under the convention.
This position was strengthened in the case of Karner v Austria,
58
where the court held that
differences based on sexual orientation require particularly serious reasons by way of
justification. In Dudgeon case
59
cited above, the court noted that the discrimination was not
necessary in a democratic society, a requirement for any justification under Article 8. It argued
that the continued existence of the Northern Ireland laws decriminalizing homosexual acts
violated the right to respect for private life under Article 8 (1) and were not justifiable under the
provisions of Article 8 (2). The court was of the opinion that the hall marks of a democratic
society included pluralism, tolerance and broad mindedness.
However, even though this was the argument of the European court we find that even some of
those termed as the most developed countries are still grappling with the issues of gender

56
Supra n.41
57
(2001) 31 E.H.R.R 47
58
(2003) 38 E.H.R.R. 24
59
Supra n.50
24

identities and the sexual orientation and even other contentious issues like abortion that have
over time been influenced by societal values and beliefs. For instance in Russia, LGBTI face
social and legal challenges as well as discrimination, that although same-sex sexual activity
between consenting adults in private was decriminalized in 1993, there are currently no laws
prohibiting discrimination on the basis of sexual orientation or gender identity and households
headed by same-sex couples are ineligible for the legal protection available to heterosexual
couples.
60

This raises the issue why Kenya should struggle to recognize the rights of persons of diverse
sexual orientation and gender identities yet there are developed countries which are yet to
recognize the same. In response to these, I hold the view that issues touching on gender identities
are not western concepts as other scholars argue. Gender identity as I have stated is about ones
inner feelings and personal identity that they dont fit in the gender they were assigned at birth; it
cannot therefore be imposed on someone. Kenya should therefore not relax in recognising these
rights simply because some developed countries which have great impact on creation and what
principles to be included in international law have not recognized the rights of these sexual
minorities.
Different jurisdictions have used different approaches towards persons with diverse gender
identity and sexual orientations. Some use the terms gays, lesbian, intersex and transgender,

60
The Council for Global Equality, The Facts on LGBT Rights in Russia,
http://www.globalequality.org/newsroom/latest-news/1-in-the-news/186-the-facts-onlgbt-rights-in-russia at 1 April
2014, 3.29 pm
25

others refer to them as sexual minorities or sexual preferences and others frankly admit that they
do not understand the term.
61

There is thus a lot of controversy as regards this issue of sexual minorities if we so call them. In
fact some people who sympathize with their predicaments or who all together reject them do not
understand the difference between gender identity and sexual orientation. Some people who go
to the extent of threatening their lives and violating their fundamental rights and freedoms do not
understand the fact that gender identity has nothing to do with sexual orientation. Some Kenyans
are illiterate and even some do not know how to write and others have never gone beyond their
homesteads and this may explain the reason why some parents who give birth to transgendered-
children term that as a symptom of homosexuality.
The Kenyan laws may choose to remain silent on these issues and assume that the transgendered
persons do not exist. The society may even fail to recognize them on the fact that our traditional
beliefs did not approve of any other gender apart from male and female and that there is no place
of homosexual acts in our society. However the fact still remains that the life of these
disadvantaged minorities is at stake, they are being tortured and slaughtered because the society
does not approve of their sexual orientation. The religious leaders in Mombasa at one time
incited their followers in speech and action to eliminate LGBTI from Kenya, saying that they
will eradicate these persons and in fact wondered how a state institution can be involved in
providing counselling services to the criminals (homosexual).
62


61
ARC International, Out at the UN: Advancing Human Rights Based on Sexual Orientation and Gender Identity at
the 61st Session of the UN Commission on Human Rights (April 2005),
http://www.rightsaustralia.org.au/data/ARC%20CHR%20Report%202005.pdf at 29November 2013, 3.45 pm.
62
The Kenya Human Rights Commission, The Outlawed Amongst Us: The Study of the LGBTI Communitys Search
for Equality and Non-discrimination in Kenya (2011), http://www.khrc.or.ke/component/docman/doc-details/14-
the-outlawed-amongst-us.html at 27 January 2014, 11.03 am
26

They end up living miserable lives because the law cannot recognize them and hence cannot
procure vital documents such as birth certificate and national identity cards necessary to procure
formal employment. But for how long will we watch these people being butchered? In any case,
no one chose to be born an intersex or either have a different gender identity not recognized both
socially and legally.
In addition, in the US it took the case of Lawrence v Texas
63
where the Supreme Court ruled that
it was an unconstitutional denial of due process to criminalize consenting sexual activities of
adults. In addition the convention provides for the right to freedom from discrimination under
Article 14 of the convention which provides that;
the enjoyment of the rights and freedoms set forth in this convention shall be secured
without discrimination on any grounds such as sex, colour, language, religion, political or
other opinion, national or social origin, association with a national minority, property,
birth or other status.
64

This provision plays a very important role and the courts have accepted that where a difference
of treatment in relation to the enjoyment of another convention right based upon the claimants
sexual orientation it violated this article in the absence of a reasonable justification.
65
In that
where one is discriminated upon his sexual status that amounts to discrimination that is not
justifiable in any cause.
This article sets out the non-discrimination standards under ECHR and we can note that gender
identity and sexual orientation is not one of the prohibited grounds for discrimination. However

63
(2003) 539 U.S. 558; 123 S. Ct. 2472
64
European Convention on Human Rights, 1953, Art. 14
65
Supra n.44
27

courts have held that the article should be interpreted to include these grounds as they have
become an area of concern.
66

As time passes, change is inevitable and so must the law change to protect the people who are
vulnerable and have the potential of their rights being protected. Even though the law and policy
makers did not have this in mind while drafting the laws, does it mean that these disadvantaged
groups should continue to suffer? To this end the international human rights law has tried to
some extent to protect the rights of the intersex and the transsexuals though not adequately and
comprehensively. It has therefore come a time when a separate document; declaration or treaty
should be adopted to protect and promote persons of diverse sexual orientations and gender
identities. This will help curb the human rights violations of these sexual minorities and ensure
their safety as it has been clearly established that their lives are in danger and they cannot
therefore enjoy their inherent human rights and freedoms when the right to life is threatened.
2.2: UNITED NATIONS HUMAN RIGHTS FRAMEWORK
2.2.1: INTRODUCTION
The UN has created a global structure for protecting human rights based largely on its charter,
non-binding declarations and legally binding treaties. Prior to the UN Charter, individuals were
not a major concern for international laws and there were certain areas where they could be made
directly responsible for criminal acts, but they there was little in the way of rules geared towards
their protection.
67
There has been a long standing critic on the UN human right framework as it
lacks strong enforcement mechanisms and unlike domestic law, international law as mandated by

66
Karner v Austria, (2003) 38 E.H.R.R. 24
67
Supra n.40
28

the UN is not automatically binding but is instead premised on the notion of the states consent.
68

The most significant of the UN-administered treaty regimes are those established for protection
of civil and political and socio-economic rights. These two international covenants will be
discussed later in this Chapter.
The UN Charter
69
, sets forth the purpose and goals of the UN as well as the binding directives
that member states must follow. One of its goals is to reaffirm faith in fundamental human
rights, in the dignity and worth of the human person, and in the equal rights of men and
women.
70
To that end, Member States are required to grant fundamental human rights and
equality to all individuals without distinction as to race, sex, language or religion.
For decades, sexual orientation and gender identity were hardly discussed about formally.
However recently there have been discussions at the Human Rights Council at Geneva which
focused political attention on discriminatory practices and laws at the municipal level and that
there should be obligations on states to address these through legislative and other measures.
71

2.2.2: UNITED DECLARATION ON HUMAN RIGHTS (UDHR), 1948
The UDHR, one of the first international documents to outline the idea of human rights, was
adopted in 1948 after World War II. Previously most international declarations were based on
the idea of positivism, whereby rights are only recognized once they have been set forth in
national legislation. This document was written with the aim of establishing world peace by

68
Lucy Morgan, Sexual and Gender Rights and the United Nations Human Rights Framework: Towards a
Resolution of the Debate(2009),
http://www.ses.library.usyd.edu.au/bistream/2123/5323/1/DISSERTATION-LMorgan.pdf at 15 December 2013,
4.17pm.
69
The Charter of the United Nations, signed on26th June 1945 (entered into force on 24
th
October 1945)
70
Ibid, Preamble.
71
Supra n.40
29

promoting human rights. Even though it is not binding it has created international human rights
standards that are codified in various international treaties.
72

In its preamble, it requires recognition of the inherent dignity, the equal treatment and inalienable
rights of all members of the human family is the foundation of freedom, justice and peace in the
world.
73
The opening words of the UDHR are unequivocal: All human beings are born free and
equal in dignity and rights. The rights and that they are endowed with reason and conscience
and should act towards one another in a spirit of brotherhood.
74
Having that in mind, sexual
orientation and gender identity are integral to every persons dignity and must not be the basis
for discrimination or abuse.
Further Article 2 is to the effect that everyone is entitled to all the rights and freedoms set forth
in the Declaration, without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
75
The term
other status can be interpreted to included grounds of sexual orientation and gender identity.
To that end, the LGBTI should enjoy the rights enshrined under the UDHR like other non-
transgendered individuals without any distinction.
Everyone is equal before the law and are entitled without any discrimination to equal protection
of the law and entitled to equal protection against any discrimination in violation of the
Declaration and against any incitement to such discrimination.
76


72
The United Nations Human Rights System, http://www.hrea.org/index.php?base_id=163 at 4 December 2013,
7.02 pm.
73
United Declaration of Human Rights,1948, Preamble
74
ibid, Art.1
75
Ibid, Art.2
76
Ibid, Art.7
30

Article 5 outlines the right against torture or to cruel, inhuman or degrading treatment or
punishment. The UN Committee stated that forced anal exams and sexual violence by State
agents can constitute torture or cruel, inhuman or degrading treatment or punishment. Under
international law, States must prohibit and punish acts of torture and ill-treatment, and must
provide redress to victims of such acts.
77
For instance a man was stripped in Thika by police
officers on assertion that they wished to identify his gender. He alleged that this inhuman and
degrading treatment by the police caused him to suffer psychological discomfort and depression
necessitating counselling sessions.
78

Further criminalization of homosexual activities of two consenting adults is a violation and
interference of their private lives. Article 12 of the UDHR provides to the effect that no one
should be subjected to arbitrary interference with his privacy, family, home or correspondence,
or to attacks upon his honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks.
79

In interpreting this article as read with Article 9, it would then demand that those countries that
criminalise homosexual activities decriminalize these acts. A world survey in 2011 indicated that
at least 83 countries have laws that criminalise consensual relationships between adults of the
same sex. Among these countries 38 are African countries, 23 are Asian countries, 10 are
American countries, and 9 are from Oceania and one European country the Northern Cyprus.
80

Looking at this trend most countries are third world countries and most countries termed as

77
Human Rights Committee, General Comment No. 20, Committee against Torture,
78
A.N.N. v Attorney General (2013) eKLR.
79
Supra n.73, Art.12
80
International Lesbian, Gay, Bisexual, Transgender and Intersex Association (ILGA) Brussels, State-Sponsored
Homophobia: a world survey of laws criminalising same-sex sexual acts between consenting adults (May
2011), http://www.gaylawnet.com/ezine/crime/ilga_2011.pdf at 15 December 2013, 4.25 pm
31

developed countries have outlawed the criminalization of homosexual acts and recognized the
rights of these sexual minorities.
2.2.3: INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR),
1976
The ICCPR entered into force in 1976. Unlike a declaration, it is a legally binding treaty and the
state parties are legally bound to give effect to its provisions. To this end, a party to the covenant
undertakes to respect and ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the convention without discrimination.
81

The convention sets out non-discrimination standards in Article 2 (1) and Article 26 which the
member states should uphold. Article 2 (1) provides that;
Each state party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the
present covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status
82
.
Further Article 26 provides the non discrimination clause to the effect that all persons are equal
before the law and are entitled without any discrimination to the equal protection of the law. The
law shall prohibit any discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
83


81
Supra n.40
82
International Covenant on Civil and Political Rights, 1976, Art.2 (1)
83
Ibid, Art.26
32

In addition General Comment 31 of the Human Rights Committee places a general obligation on
state parties to respect the covenant rights and ensure them to all individuals in their territory and
subject to their jurisdiction. The state parties should give effect to this obligation in good faith.
84

The UN Human Rights Committee in the case of Toonen v Australia
85
found the reference to sex
under Article 26 to be taken to include sexual orientation. The committee therefore applied
Articles 2 and 26 to find discrimination based on sexual orientation. The committee found that
adult consensual sexual activity in private is covered by the concept of privacy and that Toonen
was affected by the continued existence of the Tasmanians laws, which continuously and directly
interfered with his privacy. This argument is similar to the arguments we have established while
discussing ECHR that the society and police officers must draw a line between peoples private
life and what falls within the public domain.
The Tasmanians Criminal Code criminalized various forms of sexual acts between men,
including all forms of sexual contacts between consenting adult homosexual men in private. It
further empowered the police officers to investigate intimate aspects of his private life and to
detain him, if they had reason to believe that he was involved in sexual activities which
contravened this law. It was noted that the Tasmanian authorities advised that there is no policy
to treat investigations or the prosecution of offences under the disputed provisions any
differently from the investigation or prosecution of offences under the Tasmanian Criminal Code
in general. Therefore the challenged laws were not reasonable in the circumstances, and that
their interference with privacy was arbitrary.

84
The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, General Comment No. 31
(80), adopted on 29
th
March 2004.
85
Communication no. 488/1992
33

Consequently, the global rights in Mexico notes that discrimination against LGBTI persons has
been manifested in the form of homophobic public statements in most countries including public
officials, religious leaders who hold the view that marriage can only be between a man and a
woman. To this end the LGBTI community should be protected from such public displays of
homophobia.
86

In addition, in Young v Australia
87
, Mr. Young argued that the state refusal to provide him with a
pension benefit, on the basis of him being of the same sex as his deceased partner violated his
right to equal treatment before the law contrary to Article 26 of the ICCPR. In response the state
challenged the authors admissibility alleging that he was not a victim within Article 1 of the
Optional Protocol. In its decision, the court dismissed the allegations of the state and recalled
that the author is a victim within Article 1 of the optional protocol. It also recalled its earlier
jurisprudence that the prohibition against discrimination under Article 26 includes sexual
orientation. It pointed out the criteria to be used to determine whether any discrimination is
prohibited under the covenant is the reasonable and objective criteria.
ICCPR also provides that every human being has an inherent right to life which shall be
protected by law and that no one shall be arbitrarily deprived of this right.
88
This right is
therefore inherent and not granted by the state, the role of the state and the law is to affirm this
reality. The society should also not interfere with ones human rights and ones personal dignity
should be upheld.

86
Global Rights et al, The Violations Of The Rights Of The Transgender Persons In Mexico,
http://www.globalrights.org/site/DocServer/LGBT_ICCPR_Shadow_Report_Mexico.pdf at 28th November 2013
10.57 am
87
Communication No. 941/2000, U.N. Doc. CCPR/C/78/D/941/2000 (2003)
88
International Covenant on Civil and Political Rights, 1976, Art.6
34

In addition Article 7 is to the effect that no one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment. In particular, no one shall be subjected without his free
consent to medical or scientific experimentation.
89
In Kenya the transgender are often mistreated
and subjected to inhuman and degrading treatment because of their sexual orientation and gender
identity by the public with homophobic sentiments. Some of them are shy to report such cases
for fear of their lives, and those who dare to report such cases to the authority or institute
proceedings for violation of their human rights must have the resources to sustain a law suit.
Article 7 as read together with Article 17 which provides that no one should be subjected to
arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful
attacks on his honour and reputation and that the law should protect this right against such
interference or attacks. The police and other state employees harass and assault individuals
because of their perceived gender identity and /or sexual orientation in Mexico. A recent study in
Mexico indicated that 76.4% of LGBTI persons have been subjected to physical and
psychological violence because of their gender identity and that 53.3% have been assaulted
publicly, additional survey indicated that quiet a number of the LGBTI are discriminated by the
police or either assaulted.
90

2.2.4: INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS, 1976.
It covers the second generation rights; economic and social rights and entered into force in 1976.
This second covenant being a treaty imposes an obligation on the state-parties to give effect to its
provision. In its preamble, it recognizes the inherent dignity of the equal and inalienable rights of

89
ibid, Art.7
90
Supra n.86
35

all members of the human family which is the foundation of freedom, justice and peace in the
world.
91

It also obliges the state parties to guarantee that the rights enunciated in the Covenant which
should be exercised without discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
92

In its recent General Comment, the Committee has stated that other Status includes sexual
orientation and state parties should ensure that a persons sexual orientation is not a barrier to
realizing covenant rights. Gender identity is also part of the prohibited grounds of discrimination.
It prohibits discrimination on grounds of sexual orientation in access to health care and
underlying determinants of health as well as means and entitlements for their procurement
93

In the case of Christine Goodwin v The United Kingdom
94
, the applicant was a post-operative
male to female transsexual. The applicant claimed that she had problems and faced sexual
harassment at work during and following her gender re-assignment. She complained about the
lack of recognition of her post-operative sex and about the legal status of the transsexuals in the
UK. She also complained about her treatment in relation to the employment, social security and
pensions and her inability to marry, relying on Articles 8, 12, 13 and 14 of the ICESCR.
The court noted that there was serious interference with private life which arose from the conflict
between social reality and law which placed the transsexuals in an anomalous position in which
they could experience feelings of vulnerability, humiliation and anxiety. There was no material
before the Court to show that third parties would suffer any material prejudice from any possible

91
The International Covenant on Economic, Social and Cultural Rights, 1976, Preamble.
92
ibid
93
The Right to the Highest Attainable Standard of Health, General Comment No. 14 (2000) CESCR.
94
(2002) 35 EHRR 18.
36

changes to the birth register system that might flow from allowing recognition of the gender re-
assignment and it was noted that the Government were currently discussing proposals for reform
of the registration system in order to allow ongoing amendment of civil status data. The
emphasis was on the essence of the convention which was respect for human dignity and human
freedoms. The court relied on the appeal judgment in the case of Bellinger v Bellinger
95
that in
the twenty first century the right of transsexuals to personal development and to physical and
moral security is no longer a matter of controversy.
Later in the case of Van Kuck v Germany
96
the German courts failed to order reimbursement of
top-up costs of transsexual gender reassignment treatment. Without hearing further expert
medical evidence, both the Regional Court and the Court of Appeal questioned the medical
necessity of gender re-assignment and the Court of Appeal additionally, on the basis of general
assumptions as to male and female behavior, concluded that the applicant had deliberately
caused her condition of transsexuality. Since gender identity was one of the most intimate
aspects of a person's private life, it appeared disproportionate to require Ms Van Kuck to prove
the medical necessity of the treatment. The court held that there was a violation of Articles 6 and
8 of the ECHR.
Article 3 of ICESCR provides that, equal rights of men and women, is seen as the basis for
prohibition of sexual orientation-related discrimination. The Committee on Economic, Social and
Cultural Rights (CESCR) has dealt with this matter in its General comment. In the General
Comment No. 18 of 2005(right to work), No 15 of 2002 (right to water) and 14 of 2000 (right to
the highest attainable standard of health), it has indicated that the Covenant proscribes any

95
(EWCA Civ 1140 [2001].
96
2003-VII Appl. 35968/97
37

discrimination on the basis of, inter-alia, sex and sexual orientation that has the intention or
effect of nullifying or impairing the equal enjoyment or exercise of the right at issue.
97
It is in
this context that we may observe the CESCRs regret, in 2005, which Hong Kongs anti-
discrimination legislation failed to cover sexual orientation-related discrimination and its
concern.
98

2.3: AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS (BANJUL
CHARTER).
The African Charter on Human and Peoples Rights, also known as the Banjul Charter is an
international human rights instrument that is intended to promote and protect human rights and
fundamental freedoms in the African Continent. On 24
th
June 1982, the OAU Assembly of
Heads of State and Government adopted the OAU Charter on Human and Peoples Rights. It
entered into force in October 1986 and its creation follows in the footsteps of other regional
bodies in the creation of their unique regional human Rights, notably ECHR.
When the Charter was being adopted, the international human rights instruments were already in
place; UDHR, ICCPR, IESCR and thus critics questioned why Africa would not just join these
universal regimes instead of adopting the new instrument. However the Africans needed a
Charter that they could identify with, one that could reflect their social and economic needs
based on their historical problems.
99


97
Michael OFlaherty and John Fisher, Gender Identity, Sexual Orientation and Internal Human Rights Law:
Contextualising the Yogyakarta principle(2008) Human Rights Law Review 8:2, Oxford University Press
98
Concluding Observations of the Committee on Economic, Social and Cultural Rights regarding the Peoples
Republic of China (including Hong Kong and Macao), E/C.12/1/ Add.107 (13 May 2005) (Committee on Economic,
Social and Cultural Committee, 34
th
Session), http://www.refworld.org/pdfid/43f306770.pdf at 16 December 2013,
5.09 pm.
99
Understanding the African Charter on Human and Peoples Rights, Think Free Press Article (20 November
2012), http://thinkafricapress.com/international-law-africa/african-charter-human-peoples-rights at 15th December
2013, 2.36 pm
38

Article 2 of the Charter sets out the basis of non-discrimination provision, stating that every
individual shall be entitled to the enjoyment of the rights and freedoms recognized and
guaranteed in the present Charter without distinction of any kind such as race, ethnic group,
colour, sex, language, religion, political or any other opinion, national and social origin, fortune,
birth or other status. This article lays down a principle that is essential and very important to the
spirit of the convention whose goal amid others is to eliminate all forms of discrimination and
ensure equality among all human beings.
100

Further Article 3 of the Charter establishes the concept of equality that every individual shall be
equal before the law and be entitled to equal protection of the law. This section of the Charter
can be read together with Article 19 that provides that all people shall be equal; they shall enjoy
the same respect and shall have the same rights and nothing shall justify the domination of a
people by another.
101

The Charter combines African values with international norms by not only promoting
internationally recognized individual rights, but also by proclaiming collective rights and
individual duties.
102
There are three articles that set out the duties of individual to their
community. It is the obligation of everyone to respect and consider his fellow beings without
discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing
mutual respect and tolerance.
103
One can therefore adduce that the members of a society should
respect all human beings without distinction and without due regard to their sexual orientation
and gender identity.

100
The African Charter on Human and Peoples Rights (Banjul), 1986, Art.2
101
Ibid, Art.3 and 19
102
Pamphlet No.6 Minority Rights under The African Charter on Human and Peoples' Rights,
http://www.ohchr.org/Documents/Publications/GuideMinorities6en.pdf at 16th December 2013, 9.27 am
103
African Charter on Human and Peoples Rights, 1986, Art.28
39

Similar to other international human rights instruments, the Charter does not mention sexual
orientation as a protected category for purposes of non discrimination, and the issue of sexual
orientation has remained largely outside the African Commissions consideration. The Charter
does, however, include other status, which other U.N. bodies have interpreted as including
LGBT individuals.
104

2.4: UN RESOLUTION RELATING TO SEXUAL ORIENTATION AND GENDER
IDENTITY
On July 2011, the Council adopted Resolution 17/19
105
the first UN Resolution on human rights,
sexual orientation and gender identity. During its adoption 23 states voted in favour of the
Resolution, 19 voted against and 3 abstained.
106
It is notable that none of the developing
countries voted in favour of the Resolution and of those who participated 9 voted against it while
2 decided to abstain. This Resolution recalled the universality, interdependence, indivisibility
and interrelatedness of human rights as enshrined in UDHR, ICCPR and ICESCR. It further
recalled the provisions of UDHR which affirms that all human beings are born free and equal in
dignity and rights and that everyone is entitled to all the rights and freedoms set out in the
declaration without distinction of any kind.
Expressing its grave concern at acts of violence and discrimination committed against
individuals because of their gender identity and sexual orientation, it requested the UNHCHR to
commission a study, to be finalized by December 2011, documenting discriminatory laws and

104
Supra n.44
105
Human Rights, Sexual Orientation and Gender Identity, Resolution adopted by the Human Rights Council 17/19
A/HRC/RES/17/19 14
th
July 2011
106
In Favour: Argentina, Belgium, Brazil, Chile, Cuba, Ecuador, France, Guatemala, Hungary, Japan, Mauritius,
Mexico, Norway, Poland, Republic of Korea, Slovakia, Spain, Switzerland, Thailand, Ukraine, United Kingdom of
Great Britain and Northern Ireland, United States of America, Uruguay. Against: Angola, Bahrain, Bangladesh,
Cameroon, Djibouti, Gabon, Ghana, Jordan, Malaysia, Maldives, Mauritania, Nigeria, Pakistan, Qatar, Republic of
Moldova, Russian Federation, Saudi Arabia, Senegal, Uganda. Abstained: Burkina Faso, China, and Zambia.
40

practices and acts of violence against individuals based on their sexual orientation and gender
identity and how international human rights law can be used to end violence and related human
rights violations based on sexual orientation and gender identity. In response the UN Human
Rights Office released a 60-page publication on sexual orientation and gender identity in
international human rights law. It sets out the source and scope of some of the core legal
obligations that States have to protect the human rights of lesbian, gay, bisexual and transgender
(LGBT) people.
107

This publication places five core legal obligations on states with respect to protecting human
rights of the LGBTI persons. First it is to protect individuals from homophobic and transphobic
violence in hate motivated violence against LGBTI individuals typically perpetrated by non-state
actors. The failure by the state to investigate and punish this kind of violence is a breach of the
states obligation to protect everyones right to life, liberty and security of a person, as
guaranteed by Article 3 of the UDHR and Articles 6 and 9 of the ICCPR.
108

Secondly, there is a legal obligation on the state to prevent and protect LGBTI individuals from
torture and other cruel, inhuman or degrading treatment. The failure of the state to investigate
and bring to justice perpetrators of torture is itself a breach of international human rights law.
These rights are guaranteed by Article 5 of the UDHR, Article 7 of the ICCPR and Article 2 of
the Convention against torture.
Thirdly this booklet calls upon the states to decriminalize homosexuality and that the municipal
laws criminalizing homosexuality give rise to a number of separate but interrelated violations.

107
United Human Rights Office of the High Commissioner, Geneva, Born free and Equal Sexual Orientation and
Gender Identity in International Human Rights Law (2012),
http://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf at 3 December 2013, 6.37 pm
108
ibid
41

These laws violates the human rights to be free from discrimination enshrined under Article 2 of
the UDHR as well as the right to be protected against unreasonable interference of ones privacy
and arbitrary detention enshrined under Articles 12 and 19 of UDHR and Articles 9 and 17 of the
ICCPR.
109

It also prohibits discrimination on grounds of sexual orientation and gender identity. This clause
recalls Articles 2 and 7 of the UDHR that everyone is equal before the law and is entitled to
equal protection of the law without discrimination. This right is also guaranteed under Articles 2
and 26 of the ICCPR and article 2 of the ICESCR.
Finally, states have an obligation to protect the freedom of expression, assembly and association
of the LGBTI group and that violation of these rights on grounds of ones sexual orientation and
gender identity are a contravention of Articles 19 and 20 of the UDHR and Articles 19, 21 and
22 of the ICCPR. Limitation of these rights must then be in accordance with the non-
discrimination clauses under the international human rights law.
2.5:THE YOGYAKARTA PRINCIPLES ON THE APPLICATION OF
INTERNATIONAL HUMAN RIGHTS LAW IN RELATION TO SEXUAL
ORIENTATION AND GENDER IDENTITY.
Some treaties and states prefer speaking of sexual orientation or gender identity, others prefer
gays, lesbians and transgender or transsexual while others use the term sexual preference or
sexual minorities. Therefore there have been different approaches and terminologies as regards
these vulnerable groups of persons and gender identity and sexual orientation have received very

109
Supra n.86
42

little understanding, with some states referencing transsexualism as a sexual orientation while
others frankly admitting that they do not understand the term.
110

It is in this context of such diverse approaches, inconsistency, gaps and opportunities that the
Yogyakarta Principles were borne. In November 2006, in response to well documented patterns
of abuse, a distinguished panel of international human rights experts met in Yogyakarta,
Indonesia to come up with a set of principles relating to the equal treatment of persons of diverse
sexual orientation and gender identities. As a result of that meeting, the experts came up with
principles referred to as the Yogyakarta principles, a universal guide to LGBTI rights which
affirms binding international legal standards. It recalls that all human beings are born free and
equal in dignity and everyone should enjoy their birthrights.
111

Thus, the experts aimed to clarify the aspect of human rights norms and managed, during the
meeting that occurred in Indonesia, to create a framework that would facilitate the
implementation of rights which protect sexual and gender choices.
112
The need for such
framework was due to legal and social problems most LGBTI community suffered and continue
to suffer up to date. Among them include extrajudicial execution, violence and torture, difficulty
in accessing justice, violation of the right to privacy, discrimination, denial of freedom of
expression and assembly, discrimination in employment and health.
113
These principles were

110
ARC International, Out at the UN: Advancing Human Rights Based on Sexual Orientation and Gender Identity at
the 61st Session of the UN Commission on Human Rights (April 2005),
http://www.rightsaustralia.org.au/data/ARC%20CHR%20Report%202005.pdf at 29November 2013, 3.45 pm.
111
G-Kenya Trust, My Way, Your way or The Right Way? Implementing the Yogyakarta Principles in Kenya,
http://www.ypinaction.org/files/02/54/Gay_Kenya_Yogyakarta_Principles.pdf at 13December 2013, 5.09 pm.
112
Alexander PISA, How Could the Yogyakarta Principles Help Improve the Situation of Transgender People when
Examined in the Framework of Existing Bodies of International Non-Discrimination Norms,
http://arno.uvt.nl/show.cgi?fid=127432 at 14December 2013, 9.45 am.
113
The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to
Sexual Orientation and Gender Identity, http://www.yogyakartaprinciples.org/ at 11December 2013, 11.45 pm
43

then created for the precise role of ending discrimination against the transgender and all the
LGBTI groups.
These principles address the broad range of human rights standard and their application to issues
of sexual orientation and gender identity. They further affirm the primary obligations of the
states to implement human rights and each principle are accompanied by recommendations to
states.
114

The document entails twenty nine principles which outline the rights of the LGBTI groups that
should be protected and promoted by the states. For instance, the first principle entails the right
to the universal enjoyment of human rights and that all human beings are born free and equal in
dignity and right. It places the obligations on the states to embody the principles of universality,
interrelatedness, interdependence and indivisibility of all human rights in their national
Constitutions.
115

It is important to note that this document has not been accepted unanimously by states. In order
for them to become legal instrument the states must have different attitudes and must understand
the importance and accept them. Even after several years of the principles being launched in
2007 a number of states still do not approve of them arguing that accepting them will go against
their traditions and beliefs. Therefore for the principles to be binding, a consensus must exist.
116

It is notable that most states did not approve of the principles and felt that the human rights
experts had stretched the contents of most international legal instruments in order to impose the
existence of the rights of persons of diverse sexual orientation and gender identity. However a

114
Ibid
115
Ibid
116
Supra n.112
44

few European countries have accepted the recommendation to use the principles e.g. Finland,
Netherlands and Czech Republic. Others that have followed the same include Canada, Brazil,
India and Ecuador which considered using the principles to strengthen their domestic policies.
In contrast, other states have clearly rejected to the principle; Ukraine, Marino, Qatar arguing
that they already have laws prohibiting discrimination.
117

I therefore advise states including Kenya to apply the principles in shaping their domestic
policies as regards the rights of persons of diverse sexual orientation and gender identity. The
Netherlands Ambassador Roderick van Screven noted that, There is no excuse for the
humiliation and exclusion of homosexual people. Decriminalizing homosexuality and countering
discrimination based on sexual orientation are principles within Dutch human rights policy. The
Dutch government subscribes to the Yogyakarta Principles on the application of international
human rights law in relation to sexual orientation and gender identity. Hopefully the new study
will inspire even more governments to embrace these principles as well. Therefore it is upon
states to put into consideration in applying these principles to ensure the safety of the LGBTI
community.
In Kenya, the Constitutional review processes do not seem to be consistent on the issue of
peoples diversity. For instance in Chapter Three of the Bomas Draft of 2004, national values,
principles and goals that are foundation to good governance were outlined. It provided that in
interpreting the Constitution and making or implementing decisions, the state shall recognize the
diversity of the people and promote and protect cultures of its community.
118
Does this mean that

117
Paul L. Ettelbrick, Esq & Alia Trabucco Zeran, The Impact of the Yogyakarta Principles on International Human
Rights Laws Development (2010),
http://www.ypinaction.org/files/02/57/Yogyakarta_Principles_Impact_Tracking_Report.pdf at 28 January 2014,
10.16 am.
118
The Bomas Draft, 2004, s 12
45

the experts during this process had in mind persons of diverse sexual orientation or gender
identity? However Chapter six of the same draft established the Bill of Rights, and as regards the
right to have a family it clearly provided that a person shall not marry another person of the same
sex.
119
Therefore this drafted has prohibited sexual intimacy and marriages of homosexuals and
only allowed marriage of opposite sex couples.
2.6: CHAPTER SUMMARY
The mere existence of a comprehensive body of international human rights law is an
achievement in itself. International law intervenes to protect individuals from the excesses of
their own or from the government. The UN has done much promotional work in the development
and realization of fundamental human rights and freedoms and perhaps most importantly in
placing the consciousness of human rights on the plane of international law.
Looking at the provisions of the UN treaties discussed above and the regional instruments, all
instruments recognize the rights of persons of diverse sexual orientation and gender identity.
They prohibit discrimination based on these grounds and recognize the right to privacy of these
persons. The courts and commissions seem to bring out the idea that violation of the LGBTI
rights is not justifiable in any cause as longs as their actions do not injure the rights of other
persons in the society.
However even though the concepts of sexual orientation and gender identity have not been
captured in the international instruments the provision of equality and non-discrimination have
been interpreted by the courts to prohibit discrimination on grounds of sexual orientation and
gender identity. The general principles of international law should be used to shape domestic

119
Ibid, s 41
46

policy of the state parties. Kenya having recognized international law as part of its law should
then prohibit discrimination on grounds of sexual orientation and gender identity and protect
these vulnerable groups from the homophobic and transphobic violence.
47

CHAPTER THREE: THE LEGAL FRAMEWORK AND THE PLACE OF THE
TRANSGENGER IN KENYAN SOCIETY
3.0: INTRODUCTION
People dont understand that our lives are as beautiful and as valuable to us as theirs is
to them because all of us conform to humanity in different ways. We also have to be
careful not to replicate the oppression that we face in the spaces that we are exposed to, to
our own spaces. If you are oppressed and looked at as a lesser human being, its very
difficult to look at yourself as being worthy. We have to realize that we are all different
and thus we will all have different views.
These were remarks by one transgendered-man while celebrating the Transgender Day of
Remembrance in Nairobi on 20 November 2013. The transgender community struggles so much
to be accepted by their families and by society and they feel that most members of the public do
not understand what the term transgender means and some in fact think that it is another term for
gay people.
120

Recently in Kenya, the LGBTI agenda has elicited heated debates coupled with violence visited
on these minority groups. The KHRC Survey Report in 2011 indicated that the KHRC and
LGBTI organizations continue to receive cases of human rights abuses against the LGBTI
persons. The numerous abuse patterns comprises of; physical violence, blackmail and extortion,
denial of housing or evictions on account of their sexual orientation and gender identity. They
note that for a very long time these cases have not been analyzed and there has therefore been a
general lack of researched information on how widespread these cases are or indeed who are the
main perpetrators.
121


120
Jambo Newspot, Transgender Peoples Struggle for acceptance in Kenya (23 November 2013),
http://www.jambonewspot.com/transgender-peoples-struggle-for-acceptance-in-kenya/ at 8January 2014, 3.17 pm
121
The Kenya Human Rights Commission, The Outlawed Amongst Us: The Study of the LGBTI Communitys Search
for Equality and Non-discrimination in Kenya (2011), http://www.khrc.or.ke/component/docman/doc-details/14-
the-outlawed-amongst-us.html at 4December 2013, 10.09 am.
48

The LGBTI groups are discriminated against and inhumanely treated not only from the members
of the public but also back at their homes. From a tender age they are looked down upon by their
age mates and this forces most of them to drop out of educational institutions. Back at their
homes their experiences are not any better; their parents view these as symptoms of
homosexuality and fail to accept them in the family.
The discrimination visited upon the transgender community is experienced in all areas and their
lives are made more difficult by the homophobia and transphobia and hence their safety is
threatened. Benjamin Kaniaru was an intern in a Public Relations firm in Nairobi, and he was
summarily dismissed from his employment because some of his colleagues and his employers
son did not approve of his dressing and effeminate nature. They believed his alleged feminine
disposition made him incapable of performing his duties.
122

As if this is not enough these sexual minorities are often harassed by members of public who
mock and assault them for practicing unnatural sexual relations. In cases of assault by mob
justice, the police often fail to come to their rescue and in most instances they are the ones who
are arrested. Upon arrest, police subject them to unnecessary body and house searches, which
may not even be legal, allegedly looking for evidence that could link them to other crimes. In
most instances, no charges or fake charges are pressed against them and sometimes they are not
even arraigned in court.
123
Alexander Nthungi, a farmer in Thika, was awarded Kshs. 200,000 as
damages when he instituted a suit against the police who had violated his right to privacy. He
told the court that he was arrested over allegations of assaulting a woman, an incident that
allegedly occurred in 2010. He was a transgendered man and he was dressed like a woman on the

122
G-Kenya Trust, My Way, Your way or the Right Way? Implementing the Yogyakarta Principles in Kenya,
http://ypinaction.org/files/02/54/gay-kenya-yogyakarta-principle.pdf at 2 November 2013, 2.33 pm.
123
http://jauufc.wordpress.com/2012/11/15/sexual-rights-in-kenya-the-lgbt-expedious-experience/ at 4 January 2014,
5.18 pm.
49

material day. Instead of sending him to a medical expert to confirm his gender, the police officer
stripped him naked, in the full glare of cameras and the public. A police woman is alleged to
have conducted a search on him before her male colleagues took over the incident, which was
aired on television.
124

In Kenya, politicians and religious leaders often use homophobic sentiments to spite on sexual
minorities. Peter Karanja, the Secretary General of the National Council of Churches of Kenya,
argued that the direction the debate has taken is that of recognition of homosexuality which is
against the African beliefs and morality and most importantly the Christian principles. He argues
that this matter deserves reflective discussion by the society in recognition of the societal beliefs
and values. The church leaders term the acts of homosexuals and their behaviors as a threat
worse than terrorism.
125

Kenya has no room for the LGBTI community; in fact the former president Daniel Moi once said
that homosexuality is against African norms and beliefs. The homophobic people argue that
homosexuality is a concept which was imported from the West and was unheard of in the
traditional African society.
126
This has resulted in the rejection of these minorities whose rights
are at stake and the government of Kenya does not seem to be bothered by their predicaments.
Bearing in mind the experiences, disadvantages and human rights violation visited by the
transgender because of their sexual orientation and gender identity, it is therefore important to
critically analyze the legal framework in Kenya that governs their rights. It has come a time

124
A.N.N v Attorney General (2013) eKLR, published by the National Council on Law Reporting.
125
http://jauufc.wordpress.com/2012/11/15/sexual-rights-in-kenya-the-lgbt-expedious-experience/> at 4 January
2014, 3.12 pm.
126
Courtney E. Finerty, Being Gay in Kenya: The Implications of Kenyas New Constitution for its Anti-Sodomy
Laws, http://www.lawschool.cornell.edu/research/ILJ/upload/finerty-final-version.pdf at 9 January 2014, 12.48 pm.
50

where if ones status, gender identity or sexual orientation subjects him or her to discrimination,
we should call for the inclusion of these grounds in non-discrimination standards.
3.1: RELIGIOUS AND MORAL DISCOURSES
The societal values and notions are often based on religious ideologies of morality. The moral
and religious discourses have contributed greatly towards shaping the laws of a country and
specifically with respect of sex and gender.
127
Historically some cultures and religions
accommodated, institutionalized or revered same sex love and sexuality such mythologies and
traditions can be found around the world.
128
This however changed with the coming of
Christianity. The Christians adopted the prohibition of sodomy and with the adoption of
Christianity as the state religion in Roman Empire, the law started to point on this perspective.
The Roman Catholic argued that sodomy was against the laws of nature, however other religions
like Islamic religion was quite accommodating to homosexuals.
129

In Kenya, the society does not approve of the homosexual acts that man and woman were
naturally designed to enjoy sexual act in order to procreate. Nature was aware that if the element
of pleasure was lacking then man and woman may be disciplined to come together merely for
purpose of continuity of life. Therefore homosexuality is a threat to survival of mankind. As an
African traditional society, Kenya views the behaviour of homosexual as a taboo and religion
rejects it referring to them as unnatural offences. The society expects that men are supposed to
play the masculine roles and if a man plays the feminine role in a relationship they are looked

127
International Commission of Jurist, Geneva, Practitioners Guide No. 4: Sexual Orientation, Gender Identity and
International Human Rights Law (2009), http://www.refworld.org/pdfid/49783aedz.pdf at 18 January 2014, 5.07
pm
128
http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Religion_and_homosexuality.html at 18 January 2014,
3.17 pm
129
Supra n.127
51

down upon. The issue of homosexuality is still abhorred and not understood in our country and
in fact our cultures are still deep rooted amongst the people.
130

It has come a time when people should get educated about issues surrounding persons of diverse
sexual orientation and gender identity. The change must come from the community itself and
break the long-standing beliefs although it may take several generations.
131
The society should be
educated to be open on these issues and learn to respect others dignity even though they do not
like them.
A proportion of our society has a limited knowledge on the status of intersex and transsexuals.
However, a few people understand the fact that these issues are of necessity and not choice.
Therefore acceptance of these persons in our society requires dissemination of appropriate
information that enlightens the society and better their understanding on these issues. The burden
is on the shoulders of the government and the civil society to educate the masses and try to
change the publics negative perspectives on the issues.
132

The society has come from times when, if a disabled child was born; he/she was pierced with a
sword and thrown to the river. The disabled children or mentally challenged were viewed as a
curse and hence they could not be accommodated in our society. We have evolved to a society
that has not only come to appreciate their situation but also the need to have special schools for
affected children as well as legislation that protect and promote their rights which even have a
constitutional back up.

130
http://journalism.indiana.edu/programs/kenya_2013/2013/07/09/marginalized-lgbt-community-struggles-to-find-
a-place/ at 10 February 2014, 10.03 am
131
ibid
132
R.M v Attorney General & 4 others (2010) eKLR
52

It is notable that we cannot change morals and cultural values within one day. It is a matter of
time that we begin with one step to accept these sexual minorities and in fact recognition of these
victims in other countries like South Africa has taken several years. The values, morals and
beliefs on issues of sexuality of our society are so deep rooted and we have not reached a stage
where they can be rationalized by science. It is therefore upon the legislature to pass laws that
protect these sexual minorities.
133

3.2: THE LEGAL FRAMEWORK ON THE TRANSGENDER RIGHTS IN KENYA
As mentioned previously, there is no Kenyan law that explicitly uses the terms; gays, lesbians,
bisexuals, intersexual or transgender. The rights of these sexual minorities have therefore not
been explicitly provided for under the Kenyan law. However there are various laws that protect
the rights of the LGBTI and particularly the transsexuals and guarantee them access to health
care services, freedom from discrimination while other laws are still silent on these issues.
For instance, The Kenya Penal Code
134
provides for anti-sodomy laws but does not criminalize
the acts of lesbians. While the Prisons Act
135
provides facilities for male and female inmates,
there are no provisions for the transgender or the intersexes. I hold the opinion that the omission
by these laws amounts to discrimination of these minorities. In addition, the Constitution of
Kenya provides for the rights of the minorities and marginalized as well as the non-
discrimination standards.
136


133
R.M. v Attorney General & 4 others (2010) eKLR.A look at similar developments in the United Kingdom shows
that the Kenyan situation is not unique. For example, the struggles that transsexuals and intersex persons have had to
go through in the United Kingdom to attain legal recognition of their gender reassignment status and right to marry,
has spanned over a period of many years, during which period the struggle moved from the domestic courts to the
European Court of Justice
134
Cap 63 Laws of Kenya
135
Cap 90 Laws of Kenya
136
The Constitution of Kenya, 2010, Art 27; Art 56
53

Most countries have gradually accepted that individual human beings have different races, sexes
and that these differences must be respected and not be used as reasons for discrimination.
137
It is
therefore important to critically analyze all these provisions of existing law and how they can be
invoked to promote the rights of the LGBTI community in Kenya.
3.2.1: THE KENYA PENAL CODE
The Kenyan Penal Code
138
dates back to the colonial period. In 1895 the British government
formally took over the territory, which was renamed the East Africa Protectorate. The colonizers
either enacted or imported legislation in order to fully oppress and rule over the natives. Through
the East Africa Order in Council 1889, the jurisdiction of the Supreme Court and subordinate
courts of Kenya was to be exercised so far as circumstances admit . . . in conformity with the
Civil Procedure and Penal Codes of India and the other Indian Acts which are in force in the
Colony.
139

The Code was replaced in 1930 during the colonial era by the British Penal Code and therefore
the anti-homosexuality laws were imported to Kenya from the West and they reflected the
British values and thoughts on morality. The same Code was adopted during independence in
1963 and has been in place since then with just a few amendments in 2006.
The Penal Code provides that any person who has carnal knowledge of any person against the
order of nature or permits a male person to have carnal knowledge of him or her against the order
of nature is guilty of a felony and liable to imprisonment for 14 years. In cases where a person
attempts to commit any of these offences, one is liable to an imprisonment of 7 years. In
addition, any male person who, whether in public or private, commits any act of gross indecency

137
Declaration of Montreal, 2006, Preamble
138
Supra n.134
139
Supra n.126
54

with another male person, or procures another male person to commit any act of gross indecency
with him, or attempts to procure the commission of any such act by any male person with
himself or with another male person, whether in public or private, is guilty of a felony and is
liable to imprisonment for five years.
140

From the above provisions, it is an offence for a male person to have carnal knowledge with
another male person. These are the basic provisions for anti-sodomy laws in Kenya; however
acts of lesbianism have not been criminalized. One can therefore argue that the acts of lesbians
are allowed in Kenya and this would amount to discrimination of gays, whereas their acts are
equally the same with those of lesbians and if their actions carry any criminal sanctions the same
should apply to lesbians.
Therefore the idea of criminalization of gays was the idea of the colonizers and the anti sodomy
laws originated from the Penal Code. It is worth noting that over 42 countries which maintain
criminal sanctions against homosexuals are former British colonies. In the colonial period, very
strict anti-sodomy laws were imposed on all the British colonies.
141
The attempt to decriminalize
homosexuality has in the recent past faced a lot of resistance from government and the citizens of
Kenya.
142

The anti-homosexuality laws in Kenya play a very crucial role on the violations visited on the
LGBTI community in that they create conditions that make it easier for the violence to occur.
Moreover they indirectly legalize the violation of the rights to equality and non-discrimination

140
The Penal Code, Cap 63, ss 162-165
141
Joshua Hepple, Will Sexual Minorities Ever Be Equal? The Repercussions of British Colonial Sodomy Laws
(2009) 8 The Equal Rights Review 50
142
Kenya National Commission on Human Rights, Realizing the Sexual and Reproductive Health Rights in Kenya:
A Myth or Reality? (2012), http://www.knchr.org/Portals/0/Reports/Reproductive_health_report.pdf at 19 January
2014, 9.35 am
55

by sending a general message that the LGBTI community is not equal to the heterosexuals in our
country.
143

We can argue that the anti-sodomy laws in Kenya under the Penal Code are unconstitutional in
light of the Constitution. First the state and state organs have a duty to observe, respect and
protect, promote and fulfil the rights and fundamental freedoms.
144
Secondly the state organs and
public officers have the duty to look into the needs of the vulnerable groups such as persons with
disabilities, women, older members of the society and the minority groups.
145
It therefore follows
that the legislature has a duty to repeal all the laws that infringe on citizens rights and are
inconsistent with the new constitutional dispensation.
Application of anti-sodomy laws in our country on these sexual minorities is against the
principles and concept of equality and non-discrimination and do not pass the constitutional test.
Even though the moral and traditional values are grounds for limiting application of the Bill of
Rights on the LGBTI; they certainly outweigh the impacts of police harassment, murder, false
imprisonments that originate from the anti-homosexuality law.
146
In fact limitation of rights on
these people is not justifiable under the limitation clause that requires the limitation to be
reasonable and justifiable in an open and democratic society based on human dignity, equality
and freedom.
147

Section 240 of the Penal Code provides for the surgical operation of a person paying due regard
to the circumstances at hand. It provides to the effect that a person is not criminally responsible
for performing in good faith and with reasonable care and skill a surgical operation upon any

143
Supra n.126
144
The Constitution of Kenya, 2010, Art.21 (1)
145
Ibid, Art.21 (3)
146
Supra n.126
147
The constitution of Kenya, 2010, Art.24 (1)
56

person for his benefit, or upon an unborn child for the preservation of the mothers life, if the
performance of the operation is reasonable, having regard to the patients state at the time and to
all the circumstances of the case.
148

We can then argue that the transsexual persons can have access to gender reassignment surgery
for their own benefit. However this has not always been the case in Kenya as most of them are
denied the reassignment surgery by the medical officers, despite the fact that the Penal Code
clearly states that this is not an offence.
3.2.2: THE CONSTITUTION OF KENYA, 2010
The Constitution is the fundamental law of the country reflecting the underlying and unifying
values of the society. One key feature of the Constitution 2010 is the inclusion of the Bill of
Rights which is entrenched in Chapter Four, which is an integral part of the countrys democratic
governance and is the framework for social, economic and cultural policies. It sets out the rights
of all people, provides a framework for implementing the rights so that all Kenyans benefit from
them. It also establishes the Kenya National Human Rights and Equality Commission.
149

There are a number of provisions under the Bill of Rights that protect the fundamental rights and
freedoms of the transgender community. To begin with, the purpose of recognizing and
protecting human rights and fundamental freedoms is to preserve the dignity of individuals and
communities and to promote social justice and the realization of the potential of all human

148
The Penal Code, Cap 63, s 240
149
P.L.O Lumumba et al, The Constitution of Kenya (2011), Law Africa Publishing (K) Ltd.
57

beings.
150
In addition all state officers have the duty to address the needs of vulnerable groups
within the society including the minority community among others.
151

Article 26 guarantees the right to life in very clear terms. It affirms this right and prohibits
arbitrary deprivation of this right. Bearing this in mind, the life of the transgender community
should be protected and they should not be arbitrarily deprived off this right. It has previously
been noted the increment of loss of life of the transgender persons where they are mercilessly
killed either through mob justice or by the state agents.
The Constitution also recognizes an individuals right to human dignity and this right should be
protected and respected as well.
152
The need to respect this right is the essence of the human right
discourse and the ultimate aim of human rights protection is to secure an individuals intrinsic
human dignity.
153
After the judgment in the case of Alexander Nthungi, Audrey noted that
sometimes it is not always about the money but to be recognized as a human being. In her
remarks she was of the opinion that the court should have ordered the police to give a public
apology for their degrading actions.
Article 29 guarantees the right to freedom and security. It prohibits the arbitrary deprivation of
freedom, detention without trial, to be subjected to any form of violence, torture, corporal
punishment and treatment in a cruel, inhuman or degrading manner.
154
The transsexuals are
subjected not only to psychological torture but also physical torture. The example cited above of
Alexander who at the police station was harshly treated and was in fact searched by a

150
The constitution of Kenya, 2010, Art.19
151
Ibid, Art.21
152
Ibid, Art.28
153
Supra n.149
154
Supra n.150, Art.29
58

policewoman as a policeman later joined her to continue with the search. She was treated in a
degrading manner simply because she had male genitalia but dressed like a woman.
The Prisons Act provides only for male and female convicts row and no provision for LGBTI
convicts. The question that arises is what would happen if a transsexual is convicted or is
remanded. Richard Muasya, a hermaphrodite, was charged and convicted with the offence of
robbery with violence. He was committed to Kamiti Maximum Prison as a male death row
convict where he was psychologically tortured; ridiculed, mocked, sexually abused and
inhumanely treated. The court awarded him Ksh. 500,000 as damages for the violation of his
rights.
155
However I feel that the government should provide facilities and institutions for the
transsexual and intersexes to ensure that their rights are not at risk of being violated.
The transsexuals are usually arbitrary arrested and the police officers charge them with crimes
which they have not committed and plant evidence against them. This provision appears to
outlaw any form of violence, sexual abuse, torture or corporal punishment directed to a
person.
156
It is important to note that the right to freedom from torture and cruel, inhuman or
degrading treatment or punishment cannot be limited despite other provisions of the
Constitution.
157

In addition, the transsexuals should enjoy their right to privacy and should be allowed to
determine the extent to which their personal affairs could be committed to others.
158
They have
the right not to have their person, home or property searched, information relating to their family

155
R.M v Attorney General & 4 others (2010) eKLR
156
Supra n.149
157
Supra n.150, Art.25 (a)
158
Supra n.149
59

or private affairs unnecessarily required or revealed.
159
To this end I opine that police officers
and even the members of the public should not interfere with the private lives of the transsexuals
regardless of the fact that they do not approve of their sexual orientation and gender identity and
as long as their acts do not injure any member of the society. They should be treated like other
fellow human beings and their private life should be their own business.
The economic and social rights of individuals have been affirmed in Article 43 of the
Constitution and in particular the right to the highest attainable standard of health, which
includes the right to health care services and reproductive health care.
160
The transsexuals have
been denied this right when the medical officers deny them the sex operation surgery arguing
that the laws of Kenya do not provide for the sex surgery. The transsexuals should enjoy the right
to health care service including the sex surgery without any limitation as long as it is to the
benefit of the individual.
Further the Constitution establishes the concept of equality and non-discrimination. Every person
should enjoy the fundamental rights and freedoms enshrined in the Bill of Rights without
distinction of any kind; race, sex, pregnancy, marital status among others. In addition every
individual is equal before the law and is entitled to equal protection of the law.
161
The state is
obligated to take legislative and other measures, including affirmative action programmes and
policies designed to redress any disadvantage suffered by individuals or groups because of past
discrimination to enhance the realization of the rights under Article 27.
I hold the opinion that the transgender community and LGBTI group is one group that has been
historically disadvantaged either due to their sexual orientation or gender identity. Therefore in

159
The Constitution of Kenya, 2010, Art.31
160
Ibid, Art.43
161
Ibid, Art.27
60

interpreting this section of the law, we can include this disadvantaged group which has been
discriminated in almost all areas of life. For instance, in accessing the health care services to
undergo the sex reassignment operations the medical officers are not willing to help them. They
dismiss them with excuses that the problem of transsexuals is a foreign concept and that our laws
do not cater for transsexuals and sex change surgery. In the meantime they can wait as they
research what the law says about transsexuals. Others argue that providing sex surgery is not a
priority to the ministry of medical services. There are other issues that need immediate attention
like malaria and HIV/AIDs which are killing people.
162

Looking at these few excuses, it then means that the Ministry has not paid any attention to the
transsexuals and in fact is of the view that their problem is not a major issue. But this minority
group is suffering and will continue to suffer due to the governments failure to recognize them.
Their lives are threatened and they cannot enjoy their fundamental rights and freedoms. People
are losing their lives and still that is not a pressing issue for the government. Its high time the
government enact a legislation to protect and promote their rights. The medical officers deny
them the surgery simply because the law does not provide this right. Therefore if ones gender
identity subjects him or her to discrimination then it is a proper ground that this persons right be
protected by law and captured as a prohibited ground for discrimination.
Article 47 guarantees transsexuals the right to fair administrative action that is expeditious,
efficient, lawful, reasonable and procedurally fair. Further if a right or fundamental freedom of a

162
Audrey Mbugua, Kenyan Transsexuals and The Law: Understanding Kenyans Legal Structure for The Protection
and Promotion of The Rights of People with Transsexualism, http://www.transgender Kenya.com at 21 January
2014, 10.27 am
61

person is likely to be adversely affected then he/she has the right to be given written actions for
the action in question.
163

Finally the Constitution provides for the rights of the special groups and specifically the minority
and marginalized groups. The state is obligated to take affirmative action programmes designed
to ensure that minorities are represented in governance, provided with special opportunities in
educational and economic fields, special opportunities for access to employment develop their
cultural values, languages and practices and have reasonable access to health services.
164

In interpreting this article the LGBTI can be termed as sexual minorities and hence fall under the
category of the minority groups in Kenya. It is also important to note that the transgender are
looked down upon by their classmates from a tender age and as such most cannot stand these
humiliations and opt to drop out of school. It then follows that they can hardly secure formal
employment and this may explain the reasons why most of these people live in misery and
extreme poverty.
In the example of Richard Muasya cited above, the facts in that case are that he was born with
both male and female genitalia and as a result of this ambiguity was unable to secure a birth
certificate and identity card. He dropped out of school and later unsuccessfully attempted to
marry but he could not live with his wife nor would his marriage have any legal recognition. He
then became secluded and ended up in conflict with the law and was charged with the offence of
robbery with violence.
Looking at the above example, one can argue that the law has made the life of the transsexuals
harder even after their subjection to social rejection. This may be the reason why these minorities

163
The Constitution of Kenya, 2010, Art.47
164
Ibid, Art.56
62

always find it difficult to obey the same law that make their lives difficult and may be always
caught breaking these laws.
Therefore the state should provide special opportunities in education for this community and
special opportunities for accessing their employment. This is due to the fact that those who can
stand the humiliation in school and successfully complete the required curriculum are not
guaranteed that they will secure employment. Their dressing and behavior does not conform to
their assigned gender and their identification and educational documents and hence most
employers think that they are impersonating someone else. During a research conducted by ILO
in Thailand, it was found that transsexuals are excluded from many jobs because of their gender
expression or required sex-segregated dress codes. In one case the inability to change the details
in the passport resulted in a transsexual being unable to make the necessary work-related trip.
165

If an employer has a gender-specific dress code, employers should then permit employees to
comply with these rules in an appropriate manner that is consistent with their gender identity.
Even though the dress codes apply uniformly to everyone they should accommodate the
transgender as well and ensure that they are not discriminated against. In that, if the dress code is
specific for each sex then the employer should come up with a policy that allows the transsexual
undergoing the transition process, dress in a manner that they are not discriminated against.
The case of Schroer v Billington
166
, illustrates how the job offer granted to the plaintiff
(transgendered man) was withdrawn when he informed her employer that she will be dressing in
a feminine manner as she would be transitioning from male to female. She wanted to start

165
United Nations Development Program, Transgender Health and Human Rights,
http://www.undp.org/content/dam/undp/library/HIV-
AIDS/Governance%20of%20HIV%20Responses/Trans%20Health%20&%20Human%20Rights.pdf at 21 February
2014, 12.52 pm
166
577 F. Supp. 2d 293 (D.D.C. 2008)
63

working as Diane and would be living full time as a woman for at least a year before having sex
reassignment surgery.
The right to work is one of the social welfare rights, understood in the broad sense of the term. In
that creating and protecting this right involves ensuring not only those who seek employment can
find but also there exists the right to free choice, right to a living wage, the right to decent
working conditions, right to form and participate in activities of a trade union as well as the right
of freedom from discrimination in work.
167

First discrimination often prevents transsexual persons from finding or keeping a job and
secondly work harassment on these individuals is very common. There are countries where the
girl child faces restrictions in accessing education and career options unlike the boy child.
Therefore the Trans men in such countries face similar discriminations as those faced by the girl
child. A survey carried out and published in the USA in 2008, of 6,540 transgender persons a
high proportion of trans men had engaged in sex work at some point in lives and more than one
in every seven transgendered women (15%) and one in every fifteen (7%) transgendered men
had engaged in sex work for income. This is approximately high as contrasted with 1% of all
women in the US who had engaged in commercial sex work. In addition, it was found that 90%
of these persons experienced harassment, mistreatment or discrimination on the job, or hide their
gender identity to escape from such harassments. Almost half had been hired, fired or denied
promotion because of their gender identity.
168

Therefore from the rights highlighted above it then means that in implementing the new
Constitutional dispensation, the rights of the transsexuals should be protected and promoted. The

167
The International Covenant on Economic, Social and Cultural Rights, 1976, Art7; Art 8; Art 9
168
Supra n.165
64

Constitution should be interpreted widely to comprehensively protect the rights of these sexual
minorities whose life is at stake. In my opinion the law recognizes the transgender community
even if it is indirectly but the problem is the implementation of these laws. In addition the laws
enforcers, e.g. the police department do not comprehensively understand the law itself and may
be do not know how to interpret it. Even though there are numerous rights guaranteed to the
transgender community even the victims themselves do not know or else do not understand what
their rights are or are afraid to enforce their rights even if they are aware that they exist at all.
In chapter two we looked at the international law as regards the rights of the transgender, we
highlighted the specific provisions under international law that protects the rights of the
transgender and how the same has been interpreted. It is therefore important to look at the
applicability of international law in Kenya and what is the place of this law under the Kenyan
system.
The Constitution in Article 2 provides that the general principles of international law shall form
part of the laws of Kenya and that any treaty or convention ratified by Kenya forms part of the
law of Kenya.
169
To this end Kenya has ratified both ICCPR and ICESCR. The court in
interpreting these two conventions has termed other status in prohibiting discrimination to
include sexual orientation and gender identity. I hold the view that in prohibiting discrimination
in Kenya even though the term other status has not been used in applying international law in
Kenya, grounds of sexual orientation and gender identity should then be included.
In addition the constitution obligates the state to enact and implement legislation to fulfil its
international obligations in respect of human rights and fundamental freedoms. As established

169
The Constitution of Kenya, 2010, Art.2 (5) & (6)
65

under chapter two, the international law has recognized the rights of LGBTI community and
calls for state parties to decriminalize homosexuality as well as protect these sexual minorities
from homophobic and transphobia violence. I therefore feel that it is the high time Kenya scrap
the anti-sodomy laws and enact a legislation that specifically protect the rights of the transgender
community as this community is suffering and will continue to suffer as long as there is that
lacuna in the Kenyan law.
3.3: THE CONCEPT OF THE LIMITATION OF RIGHTS
Having discussed the nature of fundamental human rights and freedoms, it is notable that they
are inherent and the role of the state and law is to give these rights a legal back up. However
some rights can cause violations of other rights or of the rights of others which is why rights
have to be balanced. In striking this balance the legal instruments nationally and internationally
have outlined the limitation clause and to what extent these rights can be limited.
Broadly, there are two ways in which enjoyment of non-absolute rights may be limited. First
through express limitation clause, which sets out parameters by which these rights can be limited
and secondly there is implied limitation which arises as a result of interpreting terms. This is
where there is no limitation clause mentioned in the text but limitations have been read through
the interpretation of the right.
170

The Kenyan Constitution sets out a general limitation clause
171
, this is unlike the Old
Constitution where all rights were subject to provision of law thus providing the legislature with
an avenue for severely limiting the rights through legislation, and hence negating the very rights

170
http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuidanceSheets/Pages/Permissiblelimitat
ions.aspx at 9 February 2014, 3.00 pm
171
The Constitution of Kenya, 2010, Art.24
66

the constitution was meant to promote and protect. Constitution 2010 Article 24, is to the effect
that;
24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by
law, and then only to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account all
relevant factors, including-
(a) The nature of the right or fundamental freedom
(b) The importance of the purpose of the limitation
(c) The nature and extent of the limitation
(d) The need to ensure that the enjoyment of rights and fundamental freedoms by any
individual does not prejudice the rights and fundamental freedoms of others; and
(e) The relation between the limitation and its purpose and whether there are less
restrictive means to achieve the purpose.
From the above provision sexual rights can be limited if they injure or harm the rights of others.
There are those who argue that while sexual diversity itself is threatening to many in authority,
sexual rights do not necessarily destroy all rules, but rather change the rules according to which
pressure and support can be applied to limit, suppress or punish behavior. However sexual rights
should not be constrained more than other rights.
172

However I dont think that when transsexuals demand for legal recognition and be accorded with
surgery reassignment they harm the rights of anyone. I feel that this concerns how they feel and
it is their body that undergoes the surgery. Therefore there is no way they are trampling over the
rights of others.
However the principle of paternalism justifies state coercion to protect individuals from self-
inflicted harm or to guide them whether they like it or not towards their own good. Committing

172
International Human Council on Rights policy, Sexuality and Human Rights (2009) ATAR Roto Press SA,
Vernier, Switzerland, http://www.ichrp.org/files/reports/47/137_web.pdf at 10 February 2014, 12.20 pm
67

suicide would be an example of self-inflicted harm; arranging for a person to put one out of
ones misery would be an example of a harm inflicted by the action of another to which one has
consented. Sartorius then argues that the state is permitted to protect people from their own
ignorance at least in circumstances that creates a strong presumption that their misinformed
choice would not correspond to their eventual one.
173

Some scholars in favour of this principle argues that we are social beings and all of our choices
directly and indirectly affect others and when our choices would harm others it is therefore
legitimate to interfere. People who are injured as result of their self-inflicted harm not only cause
harm to them but because persons are connected to one another inevitably also imposes costs on
others. Therefore paternalism might be justified in this case. However others argue that this
principle is objectionable as it violates what philosopher Immanuel Kant refers to as equal
dignity of all human beings. That respect for human dignity implies respect for peoples ability
to think and choose for them. People whose choices are interfered with then are not treated as
equals capable of making their own decisions.
174

The Constitution requires that any limitation of any right must be based on a law. That law must
express the intention to limit that right and the nature and the extent of limitation.
175
Therefore if
any law is challenged as unconstitutional the first step is to determine whether it infringes any
constitutional right and if it does so, we should then determine whether that limitation is
justifiable in an open and democratic society, the public purpose served by the measure that has

173
Sartorius, Rolf, ed, Paternalism (1983), Minneapolis, MN: University of Minnesota Press,
http://books.google.co.ke/books?hl=en&lr=&id=0xOaQ2eFh7EC&oi=fnd&pg=PR5&dq=Sartorius,+Rolf,+ed.,+Pat
ernalism+%28Minneapolis,+MN:+University+of+Minnesota+Press,+1983%29&ots=lFGhK762gb&sig=A1WS0S-
kiPb0ik4pFxUUx3LBhHM&redir_esc=y#v=onepage&q&f=false at 23 February 2014, 11.34 am
174
Claire Andre and Manuel Velasquez, For Your own Good,
http://www.scu.edu/ethics/publications/iie/v4n2/owngood.html at 23 February 2014, 11.53 am
175
The Constitution of Kenya, 2010, Art.24 (2)
68

been challenged and the extent of the intrusion. The objective test and the mind of a reasonable
man are applicable in determining the unconstitutionality of any law. Therefore limits of rights
must pass the limitation clause under Article 24.
176

Under the international law, limitation of rights is only allowed under the provisions of law. For
instance ICCPR, Article 19 provides for the right to freedom of expression. It effects that this
right is subject to restrictions but only as provided by law and is necessary. Further Article 18
provides the right to movement which may be subject to only such limitations as are prescribed
by law and are necessary to protect public safety, order, health, or morals or the fundamental
rights and freedoms of others.
177

The requirement that limitation of rights must be justifiable in a manner that is reasonable and in
a democratic society was also clearly established in Canadian Supreme court, in the case of R v
Oakes.
178
Oakes was charged with unlawful possession of a narcotic for the purpose of
trafficking. When the judge found him guilty of possession of hashish oil, Oakes brought a
motion challenging the constitutional validity of section 8 of the Canadian Narcotic Control Act.
It provided that if the court found that the accused was in possession of the narcotic he shall be
given an opportunity of establishing that he was not in possession for the purpose of trafficking.
The accused argued that that provision violated the presumption of innocence of an accused
person. The matter went up to the Supreme Court which concurred with the opinion that;
It may become necessary to limit rights and freedoms in circumstances where their exercise
would be inimical to the realization of collective goals of fundamental importance [to the people
of Canada].

176
Supra n.172
177
International Covenant on Civil and Political Rights, 1976, Art.18; Art.19
178
(1986) 1 S.C.R. 103
69

Similarly in Dudgeon v U.K.
179
the commission found that the laws of Northern Ireland which
criminalized the homosexual acts between two consenting adults violated Dudgeons right to
privacy under Article 8(1) of the European Convention on Human Rights. The commission held
that such laws was not justifiable under Article 8(2) of the same convention which was to the
effect that there should be no interference by a public authority except such as is in accordance
with the law and is necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms of others.
3.4: JUDICIAL INTERVENTION ON THE TRANSGENDER CASES
At the time of writing this research, there were only two cases touching on transsexuals and two
on hermaphrodites which have found their way in the Kenyan courts. It is therefore very
important to analyze these cases and understand what the opinion of the court is as regards the
rights of these sexual minorities.
The first case was instituted in 2007, R.M. v Attorney General & 4 others
180
, where the petition
was filed under the Old Constitution. The circumstances surrounding this case were that the
petitioner was born with both female and male genitalia and was given a male name by his
parents. Due to his ambiguous gender he was unable to secure a birth certificate and a national
identification card. Without these vital documents and the failure of the law to recognize his
marriage, he lapsed into a life of crime and was charged with the offence of robbery with
violence. While in remand awaiting trial it was medically established that he was a
hermaphrodite and this posed a dilemma as to whether to remand him in a female cell or male

179
(1981) 4 E.H.R.R 149
180
(2010) eKLR
70

cell. The then Kitui Magistrate ordered that he be remanded at Kitui Police Station pending his
trial.
He was later convicted and sentenced to death for the said offence and committed to Kamiti
Maximum Prison for male death row convicts. While in prison he was both physically and
psychologically tortured; he was forced to share cells, beddings and sanitary facilities with male
inmates. He was sexually abused, molested, ridiculed and inhumanely treated.
It is on these facts that he filed this petition seeking several prayers including, a declaration that
he was not accorded a fair trial because the Prisons Act
181
did not provide for instances where
intersexual people should be remanded and that he was being discriminated upon under the
ground of sex which was inconsistent with Section 82 of the old Constitution, which then
outlined the non-discrimination clause and or on the basis of status. He also sought a declaration
that the Births and Deaths Registration Act
182
, Sections 2 (b) and 7 were inconsistent with
Section 82 of the then Constitution. In addition he sought a declaration that the government had
failed to enact a legislation to regulate the intersexual, set up the institutions and facilities for
intersexual, denied the right to movement as they cannot acquire a passport, democratic right to
vote as they cannot acquire national identification cards.
During the hearing the petitioner argued that issuance of a birth certificate means that a person is
recognized and acknowledged of being in existence and hence enjoy several rights such as access
to health care and immunization, enrolment in school at the right age, protection against under
age military service, protection from child harassment by police, securing a child right to

181
The Prisons Act, Cap 90, s 32 male and female prisoners shall be confined in separate prisons or in separate parts
of the same prison The Prisons Rules, r 32 (2) (a) male and female prisoners shall be kept absolutely separate
from each other and shall be confined in different buildings.
182
Cap 149 Laws of Kenya
71

nationality, protection against child trafficking among others. Therefore lack of this vital
document means arbitrary deprivation of these rights. For instance a person cannot obtain a
national identity card without a birth certificate; he cannot then apply for formal employment or
even open a bank account. This person cannot therefore enjoy the fruits of a normal life if his
rights are not protected.
Other arguments in favour of the petition were that the Prisons Act was silent on how intersex
inmates should be treated. This omission has hence resulted in inhuman and discriminatory
treatment for intersex persons in prisons. In that, had there been facilities for intersex Mr.
Muasya might not have been sexually harassed by the fellow male inmates. This therefore calls
for a review of the Prisons Act as regards. It is argued that this omission on the Prisons Act is
discriminatory since the intersexes who are convicted are denied their fundamental human rights.
From a Christian point of view in favour of the petition, it was argued that intersexual people are
human beings, who are in a class of people born with disabilities. Referring to the Bible, it was
contended that there was no strict or rigid definition of gender in the Bible, as male or female
mentioned in the book of Genesis, was only meant to facilitate relationships. However, due to the
lacuna in Kenyan law, these persons continue to suffer discrimination and stigmatization and call
upon the court to issue protection orders that will heal relations between gender identity and
cultural influences. Christians should then welcome the marginalized and those who are looked
down upon and embrace them with love, justice and mercy.
183

In opposing this petition, the 1
st
to 5
th
Respondents represented by the state counsel argued that
the court cannot direct the legislature on what laws to make or what should be included in any

183
Submissions of the 4
th
Interested Party, it was submitted that intersex and transgender persons are among the
marginalized and that the body of Christ should indeed embrace and nurture them to enable them live a flourishing
and full life within the bounds of their situation, like the eunuchs did.
72

specific law that may be passed by the legislature. Therefore, this court cannot be called upon to
make additional provisions on intersex persons under Cap. 149 as the role of the judiciary are
merely to interpret laws, not to legislate. In that, even though with regard to Section 82 of the
Constitution, it was submitted that what the petitioner was asking for was for this court to insert
the word intersex in the Constitution, which again was a function of the Legislature. It was
argued that the petitioner had not demonstrated that he was denied a birth certificate or identity
card as he had not provided any evidence that he applied and was denied the same.
From a Christian perspective they argued that the issue of people being categorized as male or
female had a history from the Bible
184
. In that the divine definition has only male and female
with no gender in between.
The court in this case had 20 issues that emerged for determination. Among them that are
necessary for the purpose of this study include;
1. Whether the petitioner is an intersex person and if so, whether the petitioner suffers from
lack of legal recognition and protection under the Constitution.
2. Whether the petitioner has suffered lack of legal recognition because of Sections 2(b) and
7 of the Births and Deaths Registration Act and if so, whether these provisions are
inconsistent with the principle of equality and non discrimination enshrined in Section 82
of the Constitution.
3. Whether the petitioner as an intersex person has the right to determine his gender or
define his own sexual identity, or who should decide on issues of marriage and adoption?

184
The Bible, Good News 92
nd
ed, 1994) Africa Inter-Regional Services, Genesis 1:26-28,
73

4. Whether the petitioners rights under Section 82(1), (3) and (8) of the Constitution have
been violated on grounds of sex.
5. Whether the petitioner and other intersex persons have been denied their democratic right
to vote.
6. Whether the petitioners detention at Kitui Police Station and confinement at Kamiti
Maximum Prison is illegal and unconstitutional.
7. Whether the petitioners rights under the Constitution were violated during the hearing of
his Criminal Case No.1146 of 2005 at Kitui Court.
8. Whether the provisions of Sections 28, 30, 31 and 38 of The Prisons Act and Rules 25 (1)
103 & 104 of The Prisons Rules are discriminatory against the petitioner, resulting in a
violation of his rights.
9. Whether the Government has failed to ensure statutory guarantee, protection and facilities
to cater for the petitioner and other intersex persons.
10. Whether the petitioner is entitled to an award of general damages.
In response, the court argued that the petitioner neither questioned the powers of the authorities
in Kitui police station, Kitui Magistrates Court and the Kamiti prisons, nor did he allege breach
of natural justice which were proper grounds for application of Judicial Review. In the absence
of these grounds the then Order LIII of Civil Procedure Rules could not apply. The argument of
the petition before the court then was that the petitioner has been denied legal recognition and
that his fundamental rights have been breached. The court was satisfied that the petitioner fell
within the description of an intersex person as he had ambiguous genitalia bearing physical
characteristics of both male and female. However, the petitioner had failed to bring concrete
evidence to establish that there is a body of persons who are intersex in this country and in fact
74

had not even pointed out any intersex in respect of whom the petitioner could bring a
representative suit.
In determining the issue of denial of legal recognition under the Births and Deaths Registration
Act, the court found that Section 2 (b) relied upon did not apply to this case and the proper
section was Section 2 (a) that require the particulars of a child including sex. The court noted that
neither this Act nor the then Constitution defined the term sex and raised the question of what the
legislature meant with the term sex. After examining various definitions it concluded that the
term sex refers to the categorization of persons into male and female on the basis of their
biological differences as evidenced by their reproductive organs. Then what was the legal status
of an intersex person who had ambiguous genitalia?
The court rejected the argument of denial of legal recognition arguing that in requesting for the
particulars of the sex as either male or female the Act did not exclude the petitioner as an
intersex person because he fell within one of the two defined categories. In that under normal
circumstances the sex of an individual manifests itself in a clear way at birth, through the
physiological appearance so that one is able to tell at once whether the individual falls within the
male or female category. However, it may have been difficult to determine the petitioners
gender at an early stage and maybe the best thing which his mother did was to adopt the category
whose external genitalia and physiological features appeared more dominant at that stage.
Therefore the court was satisfied that the petitioner still fell within the two categories and his
birth could have been registered under that Act.
In addition, the court was reluctant to accept the argument that the term sex under the
Constitution would have been interpreted to include intersex so that they could enjoy equal
75

treatment of the law. It argued that to introduce a third gender would be a fallacy as an intersex
still fell within the identified categories; male and female. Secondly it argued that it was not
within the mandate of the court to expand the meaning of the term sex when the legislature in
Kenya has not done so. Therefore the term sex under the constitution needs no interpretation
beyond its ordinary and natural meaning which is inclusive of all persons including intersex
persons within the broad categories of male and female.
The court rejected the argument that the petitioner suffered discrimination in education,
employment, democratic right and housing. It argued that the petitioner was born in 1974 and
this was before the mandatory requirement for production of a birth certificate as a condition for
enrolment in school. He did also show efforts or his mothers effort to acquire a birth certificate
and in fact his mother deposed that he was born at home. In addition, his dropping out of school
had nothing to do with his intersex status and that the reason why he could not procure any
employment was because he lacked educational background which would have enhanced his
bargaining power in labour market.
Another important issue was the right of the petitioner to determine his gender or define his
sexual identity. First the court argued that the petitioner was an adult and did not require the
consent of any person to define his sexual identity provided that this is done within the confines
of the law. Secondly corrective surgery was an option available to the petitioner for purposes of
clearly defining his sexual identity. However the court was of the view that such surgery is
delicate and very expensive and that the petitioners condition is not any more precarious or
urgent than cancer patients or HIV/AIDS patients. The government is limited in providing
medical facilities and resources due to the socio-economic conditions. Hence, the government
cannot be blamed for failing to provide necessary facilities to enable the petitioner have
76

corrective surgery as there is no justification as to why such gender corrective surgery should be
given priority in accessing funds.
Further the court rejected the petitioners argument that the provisions of the Prisons Act and
Prisons Rules were discriminatory to the petitioner. It argued that the Prisons Act provides for
male and female prisoners to be put in separate prisons, and that the petitioner as an intersex
person ought to have been put in a separate prison other than the male prison and be taken care
of by an intersex persons or person trained under that area. In appreciating the ambiguous nature
of the petitioners genitalia, the court had issued an order on 6 November 2007 for the petitioner
to be accorded exclusive or separate accommodation from the male convicts. The petitioners
situation is unique, and was not anticipated by the Legislature. The petitioners confinement in
special accommodation cannot therefore be a violation of his fundamental rights and in fact it
was for his own good.
Finally, another issue that was brought forward for determination was whether the petitioners
right to freedom from inhuman and degrading treatment had been violated contrary to Section 74
of the then Constitution.
185
The court found that the strip searches conducted by the prison
wardens exposed the petitioner to inhuman or degrading treatment because of the petitioners
peculiar circumstances. Exposing the petitioners ambiguous genitalia in the presence of other
persons was cruel and brought ridicule and contempt to the petitioner. More so because in the
absence of conclusive medical evidence, it was not clear whether the petitioner was being
searched by officers of the same sex as required by Prison Rule 36(2). The court noted that
although conducting searches of prisoners under Rule 36 of the Prisons Rules is a very important

185
The Constitution of Kenya, 1963 (repealed), s 74 (1) No person shall be subject to torture or degrading
punishment or other treatment. (2) nothing contained in or done under the authority of any law shall be held
inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of
any description of punishment that was lawful on 11
th
December 1963
77

exercise, it must be done with utmost decorum and respect for human dignity and protection
against inhuman and degrading treatment is an absolute right.
In their judgment the learned judges awarded the petitioner a sum of Kshs. 500,000 as damages
so as to vindicate and restore his dignity. The rest of the prayers were dismissed as argued above
except for a declaration that the petitioners right to protection against inhuman and degrading
treatment has been violated. In addition, in light of the petitioners ambiguous gender, the order
for the petitioner to be held in separate and exclusive accommodation from other male convicts
will continue to remain in force.
I opine that the Kenyan court squandered the most important opportunity to request the
government to recognize the legal position of a third gender in our country. Even worse, the
court refused to acknowledge the challenges being faced by the intersexes as a result of social
rejection and failure to secure important documents such as birth certificate, national
identification cards and passports. Without such documents, these persons cannot secure
employment and their democratic rights are curtailed. In refusing to acknowledge their plight the
court argued that;
To interpret the term sex as including intersex would be akin to introducing intersex as a
third category of gender in addition to male and female To introduce intersex as a third
category of gender would be a fallacy.
I tend to disagree with the argument that intersex persons fall within either between female and
male gender and hence the Births and Deaths Registration Act is not discriminatory. Bearing in
mind that an intersex is a person who has both genitalia, I do not think that they fall within either
male or female gender. They have both male and female gender and the law does not seem to
recognize that these people exist. Therefore room for a third gender should be created through a
legislation when it is hard to determine whether one is a male or female. This will enable whose
78

gender is in ambiguity to acquire a birth certificate, national identity card, passports and others
documents that require particulars of ones gender.
As mentioned the rights of these sexual minorities are not explicitly provided for under the
Kenyan laws. It would therefore be difficult for the court to enforce rights that are not provided
for in the first place. However the court could recommend to the state to enact a legislation that
recognizes third gender. In a case in Nepal, Sunil Pant & Others v Nepal Government and
others,
186
the supreme court of Nepal ordered the government to create laws to protect lesbian,
gay and transgender persons and to eliminate laws which are discriminatory. The court also
stated that the state should recognize the existence of all natural persons including the people of
third gender other than men and women. The courts ordered that;
this directive order is hereby issued to the Government of Nepal to make necessary
arrangements towards making appropriate law or amending existing law for ensuring the
legal provisions which allow the people of different gender identity and sexual
orientation in enjoying their rights as other people without any discrimination following
the completion of necessary study in this regard.
In addition, although Muasyas petition was rejected, his case brought global attention to the
challenges experienced by the intersex and LGBTI community in general, living in Kenya. Even
though the court argued that Muasya had not mentioned any intersex person and that he had not
identified any body of persons referred to as intersex, the fact remains that there are people being
born as intersex in Kenya though they have not spoken out publicly due to the societal and
religious values of our country. The number of these victims may not be that large but being
citizens of this country they deserve legal recognition and the law should treat them equally as
the rest of the society. The law should not only protect those who are popular and those we like

186
Writ No. 917 of the year 2064 BS (2007 AD), Supreme Court Division Bench, 2007
79

but if ones sex status subjects him to discrimination or rejection, it is a proper ground for legal
protection.
In interpreting what the legislature meant in using the term sex in the Births and Deaths
Registration Act and under the old Constitution, the court concluded that the term sex meant only
a male or female. If that was the case then the experts involved in drafting the Constitution 2010,
ought to have contemplated more on this matter. Even though judgment had not been delivered
at the time of drafting the Constitution, I think these experts were aware of these issues and may
have shed more light on the term sex in drafting the new Constitution. In fact during this
preparation period Audrey went to drop an envelope with her views on transgender issues to the
committee offices at a city office. Unfortunately on her way out she forgot her Identity Card at
the security desk and it was not easy to get it back when she went to pick it the following day.
187

Therefore if the drafters of the new constitution had the issues of transgender in mind why did
they leave them out or did they just ignore their predicaments or did they feel that they are not
important enough to be captured in the Constitution? I have argued that the Constitution should
not recognize the rights of those who are popular or who agree with our views but if ones sex
status subjects him to discrimination then that is a proper ground for constitutional protection.
Therefore even if a new suit is brought now concerning intersexes under the new Constitution,
the court would escape these issues arguing that they are not sure what the legislature meant with
the term sex and still give it a narrow definition to exclude the intersexes.
In addition even though the petitioner had not bothered to secure a birth certificate, even if he
had tried to obtain one may be it would not have been any different. This is so because he had
two genitalia and I wonder whether the doctor would have ticked the M or the F marker.

187
Standard Digital, 5June 2013, www.standardmedia..co.ke at 3February 2014, 9.37 am
80

Despite the fact that his male genitalia was more developed than the female genitalia he still had
both and the doctors mostly rely on visual physical examination in determining ones gender.
Therefore for the Births and Deaths Registration Act to determine ones gender that is
discriminatory for the intersex in that these people should be given the discretion to determine
their gender when their gender is ambiguous. However when these victims visit the hospitals for
corrective surgery they receive a wide range of responses such as;
It is not our intention to deny sex change surgery to you but due to harsh social
perspectives to these kinds of treatment we need to consult with the Attorney General and
your family. We dont want a situation where we offer you the surgery and religious
groups and your family sue our hospital.
188

However if intersexes are allowed to determine their gender that would open doors to everyone
to determine his/her gender and if corrective surgery is made available to everyone then most
people would utilize that option if they feel like doing so. As much as rights are there to be
enjoyed there must be a limit to what extent these rights must be enjoyed because a right without
limitation may lead us to live a life in the state of nature which was described by Thomas
Hobbes. In that state of nature, everyone decides for herself how to act, and is judge, jury and
executioner in her own case whenever dispute arisein that state the life of man would be
solitary, poor, nasty, brutish and short. If this is the state of nature, people have strong reasons to
avoid it.
189
Therefore enjoyment of rights must have limitations and those limitations must be
clearly defined.
Under the 2010 Constitution, the limitation clause requires that a right can only be limited by law
and only to the extent that it is reasonable and justifiable in an open and democratic society

188
Audrey Mbugua, Kenyan Transsexuals and The Law: Understanding Kenyans Legal Structure for The Protection
and Promotion of The Rights of People with Transsexualism, http://www.transgender Kenya.com at 21January
2014, 10.27 am
189
State of nature, http://plato.stanford.edu/entries/hobbes-moral/#StaNat at 3January 2014, 1:10 pm
81

based on human dignity, equality and freedom.
190
I hold the view that if this matter was decided
under the Constitution 2010, the outcome might have been different. This is due to the fact that
Article 28 guarantees the right to human dignity.
191
Such dignity includes a form of formal
recognition.
I concur to some extent with the argument that the government has more pressing and urgent
issues such as cancer and HIV/AIDS patients and maybe allocating funds for corrective surgery
may not be a priority. However we have mentioned that the lives of LGBTI community are at
stake. These people cannot enjoy their fundamental rights if the right to life does not exist.
Again, not everyone will be allowed to seek the corrective surgery as it can be accorded to cases
of necessities. In addition if the issue is scarcity of funds, processing vital documents e.g. birth
certificate is not that expensive. In fact if these victims are conferred legal recognition and
legislation is enacted to protect them most of their problems will have been dealt with.
However the role of the court is to interpret the law and try to give it the meaning which the
legislature had contemplated. It is not upon the court to grant the rights which are not outlined in
our laws. There is a need for legislation which will address the predicaments of the LGBTI
community. I agree with the court that our society is a traditional African society in terms of
morals, social and religious values. We have not reached the stage where our values can be
rationalized through science. However the intersex and transgender are suffering and will
continue to suffer and their fundamental rights are infringed in almost all areas of life. Therefore
to rationalize our traditional values this can only be done through a deliberate action on the part
of the legislature taking into account the issues we have outlined.

190
The Constitution of Kenya, 2010, Art.24
191
The Constitution of Kenya, 2010, Art.28, Every person has inherent dignity and the right to have that dignity
respected and protected.

82

Under the new regime, a recent case was filed in 2013, which called upon the court again to
introduce a third gender in the Kenyan legislation. This case involved a baby who was born with
both male and female genitalia and prays to the court to allow intersex surgeries. The five- year
old baby referred to as baby A sues the Attorney General, Kenyatta National Hospital and the
Registrar of Births and Deaths.
The facts of the case were that the baby was born at Kenyatta National Hospital and was not
issued with Birth Certificate as he could be recorded under any provided gender. The babys
lawyers argued that the birth certificate is of great legal importance to the life and development
of the child as it is a requirement to school admission, issuance of national identity card and in
application of employment.
192

In a nutshell this is a second case that the petitioners have prayed to the court for the recognition
of the third gender. I may not discuss much on this case as it is still pending in court. However,
comparing this case with the argument made in Muasyas case I think this case has a chance of
success to some extent. First it is a mandatory requirement for a child to have a birth certificate
to be enrolled in the education system. The Basic Education Act, Section 33 provides that;
for the purpose of admission to a basic education institution, the age of the child shall be
determined on the basis of birth certificate issued in accordance with the provisions of the
Birth, Death Registration Act or at the attainment of the school going age of four years on
the basis of such other document, as may be prescribed under regulations.
193

Secondly there was the argument that Muasya had not made efforts to obtain a birth certificate.
In this case the Baby A was born in Kenyatta National Hospital (KNH) and he/she was not
issued with a birth certificate. It is the norm that when one is born in a hospital the particulars of

192
J. Irvin Jalango, Church Fights Sexless Baby The Nairobian, January 24-30 2014, 7
193
The Basic Education Act, 2013, s 33
83

the child are noted down for the purpose of issuance of birth certificate. Therefore there can be
no argument that there were no efforts to obtain a birth certificate.
Article 28 of the Constitution guarantees the right to human dignity which must be respected and
protected. This right then involves one to be legally recognized and should be treated as a human
being at all times. Therefore if the rest of the citizens are being issued with birth certificates
he/she should as well obtain one. If a law prohibits him/her from enjoying that right then such
law is discriminatory and inconsistent with the provisions of the Constitution and hence null and
void. The Birth and Death Registration Act requires the particulars of the child and provides a
space for only male and female and without filling this space the birth certificate cannot be
obtained; hence it is discriminatory on the part of the intersexes who are neither male nor female
but both.
In most cases when the child is born the law through the Birth and Death Registration Act
decides the childs gender and maybe if the court rules in favour of the Baby A then every
Kenyan could decide what gender they want to be. While the child is born the doctors and the
parents observe the organs of the child and insert the gender of the child in the birth certificate.
194

If that is the case, then even when one is born with both genitalia they should also decide what
gender he/she belongs and if it is in conflict the corrective surgery should be undertaken. Failure
to issue him with an important document like birth certificate may disadvantage this child for the
rest of his life.
This being the second case that seeks the legal recognition of the third gender in our country, it is
high time that legislation is passed to allow the corrective surgery of those whose genders are in

194
Standard Digital, January 14 2014, http://www.standardmedia.co.ke at 20 January 2014, 5.17pm
84

conflict. The term sex should be redefined in our laws to capture those who are both male and
female and female. If it is not justifiable that there should be specific legislation governing this
vulnerable group, the legislature should amend such laws that are discriminatory on the part of
the LGBTI community and ensure their rights are respected and protected.
I dont agree with the argument that recognition of this third gender would be opening the doors
and allowing homosexuality in Kenya which is criminalized under the Penal Code. However it is
important to note that homosexual acts are still ongoing only that they are not done openly.
Failure to recognize these people does not stop them from being homosexuals it only makes
them more cautious when they are in public so as not to be suspected. In fact it leads to their life
being in danger as they are rejected by the society. If the law recognizes them and protects them,
I think we will save homosexuals from mob attacks.
Some people reject the homosexuals arguing that they expose their sexual orientation in public
and I wonder whether this is not the case with heterosexuals. I think the heterosexuals expose
and talk of their sexual orientation more often. At working places they discuss with colleagues
how their marriages have been tough or how their divorce process has been like. In schools the
young girls and boys discuss about their lovers and so on. In that case the heterosexuals talk
about their sexual orientation every now and then but they are raising their voices to condemn
the homosexuals for exposing their acts.
In a nutshell our society operates in a set way of order in that people have to be put in place lest
they destabilize the order of things. In our society men are men and women are women and one
cannot be both. And when one is born with both, as soon as the parents realize that they order the
doctors to correct the mistake without the consent of the child. Therefore if we are so biased
85

about intersex, can the society accept gender transitioning in cases of transgender? Most people
wonder how a man can desire to be a woman and vice versa and some think such persons are
losing their sanity.
The first transgender case in Kenya, A.N.N. v Attorney General
195
the petitioner alleged that his
constitutional rights to dignity, privacy and freedom from torture and degrading treatment had
been violated. The first issue before the court was whether as a person who suffers from GID, the
petitioner has the mental capacity to file this matter without a guardian and secondly, whether the
acts of the respondent following the petitioners arrest violated his rights under constitution.
The case arose from the events that took place in 2011 at Makongeni Police Station, Thika,
where petitioner, a transgendered-man, was arrested by a police officer on allegations that he had
previously assaulted another woman, Elizabeth Wambua in 2010. They stripped him naked in
the full glare of the media on assertion that they wanted to identify his gender in order to put him
in custody.
196
He was searched by both female and male police officers, touched him all over,
pulled his hair, beat him up, humiliated him in public and threatened him as well.
It is on these facts that the petitioner sought for a declaration that the police had violated his
fundamental rights and freedom in their inhuman and degrading treatment and violated his rights
to privacy and human dignity. He also sought a declaration that the broadcasting and publishing
of his private affairs amounted to violation of privacy and prayed for compensation for violation
of these rights.

195
(2013) eKLR
196
Neither of the parties addressed the question why the police had doubts about his gender. The only reference was
Dr. Muiruri reports that, Alexander already identifies himself/herself as female, hence the dress code. This is called
Gender Identity Disorder.
86

In opposing this petition, the respondent only submitted that the petitioner lacked legal capacity
to file and prosecute the petition and should have then come to court through a guardian as
required by the provisions of the Mental Health Act
197
as regards individuals with mental
disorder.
198
However in determining this issue the court found no basis for allegation that the
petitioner lacked capacity to lodge the petition. The court argued that there was no evidence to
indicate that Gender Identity Disorder (GID) affects ones mental capacity and in fact the
provisions of the law relied upon by the respondent provides for the circumstances in which
orders may be made with regard to a person with a mental disorder to his guardianship but is not
a determination of the mental capacity of the petitioner.
In her judgment Lady Justice Mumbi found that the petitioners rights to human dignity
199
had
been violated. She argues that the Constitution underscores the place of human dignity in the
enjoyment of all other human rights and that various provisions set out the importance of this
right. Article 10 contains the national values and principles of governance among them being
human dignity and Article 19 (2) stipulates the reason for recongnising the human rights is to
preserve the dignity of individuals and the realization of the potential of all human beings.
200

Further the Constitution sets out the non-discrimination clause and sets outs the grounds
prohibited against discrimination among them being sex, health status, gender and social
origin.
201
The court argued that regardless of ones status in life or sex one has inherent dignity

197
Mental Health Act, Cap 248 of the Laws of Kenya, ss 26, 28, where the court may make orders for the
management of the estate or guardianship of any person suffering from any mental disorder and for the
guardianship.
198
The respondent filed grounds of opposition which he contends that the petition is an abuse of the court process, is
misconceived and unfoundedthe petitioner lacks capacity to originate and prosecute the petition; and that the
police were executing a statutory duty when they arrested, detained and instigated the prosecution of the prosecutor.
199
The Constitution of Kenya, 2010, Art.28, Every person has inherent dignity and the right to have that dignity
respected and protected.
200
Ibid, Art.10 (2) (b) and Art.19 (2)
201
Ibid, Art.27
87

and is entitled to equal protection of the law. She also made her argument relying on
international treaties which obligates the state to respect the inherent dignity and worth of all
citizens
202
and hence form part of the laws of Kenya under Article 2(6) of the Constitution.
The court also found that the petitioners right to privacy had been violated when he was
unlawfully searched by both male and female officers in public and in full glare of the media. It
made reference to the provisions of the Criminal Procedure Code
203
which permits search of an
arrested person. It further provides to the effect that in the event of a womans search it shall be
conducted by another woman with strict regard to decency. In applying this section the court
argues that even though there is no specific provision as regards the search of a male arrested
person, whatever the gender or apparent gender of the person, the operative word with regard to
search of persons decency and respect for the dignity of the arrested person. The acts of officers
in question appeared to have had the intention to humiliate the petitioner by subjecting him to
search in front of the public and the media.
The Honorable Lady Justice awarded the petitioner Ksh. 200,000 for violation of his rights to
dignity and privacy. However the petitioner appealed for the award to be increased and the same
is still pending.
It is a warning to people that the dignity of transgender must always be respected and the mode
of dressing one chooses should not be a justification for humiliation. Issues of transgender ought
to be dealt with a lot of caution and restraint. They are human and people should recognize the

202
United Declaration on Human Rights, 1948, Preamble& Art.1; International Covenant on Civil and Political
Rights, 1976 and International Covenant on Economic, Social and Cultural Rights, 1976; Preambles, The African
Charter on Human and Peoples Rights, 1986, Art 5
203
The Criminal Procedure Code, Cap 75, ss 25, 27
88

pain and the hustle they go through trying to identify them with a gender that has no legal
recognition in our country.
204

From this judgment it seems that the court partly recognizes the existence of the transgender
community. They are also humans who should enjoy their inherent rights and freedoms and the
same should not be deprived from them arbitrarily. However I feel that they should have set out
an approach or guiding principles which similar cases in the future can follow. The court in this
case just ruled on the matter as the circumstances were laid down without establishing any
principle that similar cases can rely on. This raises the question whether the court is avoiding
coming up with a specific approach or whether such issues should be dealt with in the prevailing
circumstances.
This was followed by a recent case in 2013 where a transgendered-man sued for recognition,
Mbugua Ithimbu v Kenya National Examination Council (Kenya). Audrey Mbugua sued KNEC
to compel the council to change her examination certificates to reflect her new gender and the
case is pending in court. She was born a male in January 1984, studied at Kiambu High School
where she sat for the national examination under the name Andrew Mbugua Ithibu in 2001.
Seven years after completing high school, Andrew was diagnosed with Gender Identity Disorder
and decided she wanted to be a female and chose the name Audrey.
205

Audrey had legally changed her name through a deed poll and gazette notice and she explains to
the court that her KCSE certificate has violated her rights by keeping her from getting a formal
job given the discrepancies in her appearance and the details on the certificate. In her affidavit

204
http://www.africareview.com/news/second-kenyan-transgender-wins-case-/979180/1889050/-/index.html at 2
February 2014, 3.45 pm
205
http://www.mwakilishi.com/content/articles/2013/05/29/video-kenyan-sues-for-gender-recognition.html at 2
February 2014, 4.19 pm
89

she alleges that the councils refusal to change her name and gender in her certificate has caused
her to suffer distress and depression due to the daily stigma of being unable to secure
employment.
206

Kenya Christian Lawyer Fellowship challenged Audreys case arguing that Audrey has not
produced any medical proof that she is a transgender and they seek to provide a Christian
perspective to the debate.
207

Even though there have not been many cases being brought to court there has been a lot of
agitation on these issues. Probably those who have their rights being infringed cannot afford the
litigation process in Kenya which is cumbersome and quite expensive.
3.5: CHAPTER SUMMARY
From the foregoing, the Kenyan society accepts heterosexuals only and there is very low
tolerance for the persons of diverse sexual orientation and gender identity. The Kenyan law
under the Penal Code makes homosexual acts illegal and this is coupled by the violence visited
on these sexual minorities. Other legislations like The Births and Deaths Registration Act and the
Prisons Act have omissions on how the third gender persons should be treated and hence led to
discrimination as illustrated by the cases cited above.
In addition due to the traditional and social norms of our society it has been hard for these
minorities to enjoy their rights which are enshrined in the Constitution. The equality and non-
discrimination clause has been given a narrow interpretation to exclude persons of diverse sexual
orientation and gender identity from grounds prohibited for discrimination. To this end the

206
http://www.capitalfm.co.ke/news/2013/05/knec-finds-itself-in-a-landmark-transgender-case at 2 February 2014,
5.10 pm
207
Ibid
90

legislature should then pass a law to expand the equality and non-discrimination clause and
include the sexual minorities. It should also pass legislation that recognizes the existence of these
minorities and have their inherent rights respected and protected.
The LGBTI community in Kenya is suffering and will continue to suffer both in the legal and
social spheres. Even though the legislature passes law that allows them to access corrective
surgery, the medical officers may be reluctant to offer these if they feel that it is against their
norms. Therefore the government should then provide civic education to its people to enhance
their knowledge on the rights of these minorities and make people understand the pain these
victims go through.
91

CHAPTER FOUR: COMPARATIVE STUDY ON TRANSGENDER RIGHTS IN OTHER
JURISDICTIONS
4.0: INTRODUCTION
This chapter seeks to compare the situation of LGBTI rights in other countries that have
recognized and protected their rights. I will discuss the steps or the path that has been followed
by these countries to the point where these sexual minorities can enjoy their rights like other
human beings. However it will also be important to appreciate that Kenya is not the only African
country struggling with the acceptance of LGBTI community. In fact it will be realized later in
some other countries the situation of these minorities is worse and their lives are at a greater risk.
Historical research across Africa has indicated that the culture in the past recognized and often
accepted gender non-conforming individuals as members of their community. However, the
current context is one in which same-sex behaviours are criminalized in several African
countries. To that end transgender individuals may be relatively more visible as not conforming
to gender but sexual norms in their communities which in turn increases their exposure to
violence and victimization.
208
Most countries hardly distinguish transgender and the
homosexuals and in fact categorize them as one and the same. Therefore violence directed to the
homosexuals for their so called unnatural offences is then experienced by the transgender as
well.
To begin with, many African countries inherited their anti-sodomy laws from their colonizers.
Since then some have added stiffer penalties and sought to broaden the list of offenses. Other
countries are still silent on the issue despite the homophobic violence visited on these sexual

208
Geoffrey A. Jobson, et al, Transgender in Africa: Invisible, Inaccessible, or Ignored,
http://www.ajol.info/index.php/saharaj/article/viewFile/83581/73609 at 29 February 2014, 11.28 am
92

minorities. Same-sex acts are illegal in approximately 38 African countries. The actual
enforcement varies widely and the punishment ranges from different years of imprisonment to
the death penalty. Even in countries where the anti-homosexuality laws are not routinely
implemented the existence of these laws alone provides an avenue for abuse, including blackmail
and extortion by police and non-state agents.
209

In this chapter I will discuss the situation in African countries which criminalize same sex acts
and examples of anti-homosexuality laws will be drawn from countries like Uganda and Nigeria.
Later I will discuss the situation in countries that have recognized the rights of the LGBTI
community and particularly South Africa. It is notable that SA was the first nation in the world to
constitutionally prohibit sexual orientation- based discrimination. It has departed from the
African taboo by becoming the fifth country in the world to legalize same-sex marriages and the
first in Africa. Secondly, it allows for sex-reassignment surgery and the victims are allowed to
apply for change of their sex description in their birth certificate.
I will also discuss the situation in the West bearing in mind that some African myths claim that
homosexuality is a western concept. An example of laws enacted in Europe will be drawn from
Netherlands which was the first country in the world to legalize same sex marriages. Netherlands
also provides for corrective surgery to the transsexual persons and are allowed to change their
gender in the birth register even without undergoing surgery. In addition Netherlands have used
the Yogyakarta principles in making the rules and policies that protect the LGBTI rights.



209
Some African Countries pushing for Tougher Anti Gay Laws, http://www.voanews.com/content/some-african-
countries-pushing-for-tougher-anti-gay-laws/1831413.html at 28 February 2014, 10.58 am
93

4.1: CRIMINALISATION OF SAME-SEX ACTS IN AFRICAN COUNTRIES.
In Africa, over a decade the focus on equality of rights, community cohesion, diversity and
LGBTI community has grown from bad to worse. In that the possibility of legal liberation on the
grounds of sexual orientation and gender identity has further thrown into chaos. The life of the
LGBTI people in Africa including South Africa which has a constitutional prohibition on sexual
orientation-based discrimination is at stake in societies where homophobic violence and
sentiments are the order of the day. Even the human rights defenders are facing serious threats to
their lives and some have escaped to countries that recognize the gay rights.
There has been heated debates and agitation on the issue of homosexuality in Africa where it
should be legalized as insisted by the West while other countries in Africa are stiffening their
laws by inserting harsh penalty clauses in their legislation such as the cases of Uganda and
Nigeria. In explaining the existence of homosexuality in African traditional societies, some
people argue on the myth that this is a western concept. In that the Africans claim that this
behavior was introduced by non-Africans; Arab slave traders or Europeans. According to the
then Europeans, black Africans were primitive and were supposed to be close to nature, ruled
by instinct and culturally unsophisticated, therefore he had to be heterosexual and his sexual
energies directed for natural purposes; reproductive purposes.
210
However Stephen Murray
argues that homosexuality existed during pre-colonial African societies. For instance, in coastal
East Africa the Swahili-English dictionary, 1882 included the term mumeke which means mume-
mke (man- woman) and also hanithi meaning catamite, the term for an alternate gender status in
Oman.
211


210
Stephen O. Murray and Will Roscoe (eds), Boy-Wives and Female-Husbands: Studies of African Homosexualities
(1998), New York: St. Martin Press
211
Ibid
94

Late in the nineteenth century Haberlandt reported a non-masculine member of Waganda in
southern Uganda who was totally given to passive pederasty. Two boys were seen sleeping in
the same bed and another sneered on them that they loved each other like husbands and wives. In
western Kenya cases of hermaphrodites were very common. It is on these very confusing myths
as well as told stories that the history of homosexuality in Africa is founded upon.
212
However
whether homosexuality existed in the African traditional societies, history does not mean again
that homosexual relations are morally right.
Recently, there has been much heated debates in Uganda on the issue of homosexuality which
has attracted global attention when the president, signed the anti-homosexuality Bill stiffening
the punishment against homosexuality. First the Ugandan Penal Code criminalizes the acts of
sodomy and any person who commits this offence is liable to life imprisonment. If anyone
attempts to commit the offence, commits a felony and is liable to imprisonment for seven
years.
213
Recently the situation of gays in Uganda has now grown to worse with the enactment of
the Anti-homosexuality law. There has been much agitation and chaos in Uganda over the issues
outlined in the Bill. The Bill was introduced in parliament in 2009 and was passed on 20
December 2013 with the death penalty proposal dropped in favor of life imprisonment.
The purpose of the Act is to prohibit any form of sexual relations between persons of the same-
sex and to prohibit the promotion or recognition of such relations. This Act defines the offence
of homosexuality so broadly to include acts where one penetrates the anus or mouth of another
person of the same sex with his penis or any other sexual contraption, he or she uses any object
or sexual contraption to penetrate or stimulate the sexual organs of a person of the same sex or

212
Ibid
213
Uganda Penal Code, 1950, ss 145-148
95

touches another person with intention of committing the act of homosexuality. The punishment
of this offence is life imprisonment.
214

To worsen the situation, in late February 2014, a national newspaper in Uganda published a list
of more than 60 people indicating that they were homosexuals, raising fears of a witch hunt. The
paper promised to name more homosexuals in a move likely to add fuel to an already inflamed
situation for homosexuals in that country.
215
An attempt to commit the offence amounts to a
felony and one is liable to imprisonment for a period of seven years.
216
The court may as well
direct the offender to compensate the victim for any physical, sexual or psychological harm
caused to the victim by the offence.
217
Further aiding and abetting of homosexuality amounts to
an offence and one is liable to imprisonment for seven years.
218
The Act criminalizes same sex
marriages and anyone who purports to contract a same sex marriage commits an offence and the
punishment is life imprisonment.
219
The Act not only punishes those who commit the offence of
homosexuality but also those who support the homosexuals either through funds or offering
premises and is liable to a fine of five thousand or imprisonment ranging from five years to
seven years.
220

In response the religious leaders supported the Bill when it was first introduced but have few
reservations with the issue of death penalty. They believed that the punishment was too harsh

214
The Anti-homosexuality Act (Uganda), 2014, s 2
215
Witch hunt fears after Ugandan paper prints list of homosexuals, http://www.independent.ie/world-
news/africa/witchhunt-fears-after-ugandan-paper-prints-list-of-homosexuals-30041950.html at 1 March 2014, 12.01
pm
216
Supra n.214, s 4
217
Ibid, s 5 (3)
218
Ibid, s 7
219
Ibid, s12
220
Ibid, s13
96

and homosexuals could change.
221
In justifying his signing of the Bill the president argued that
he is preserving the respect of African societies and cultural values.
This law has attracted strong international reactions and particularly the western donors have
frowned upon this law and are asking for its repeal. They have taken a tougher line by cutting
their aid towards Uganda. For instance Norway, said it would be with holding eight million
dollars in development aid and Denmark diverted nine million dollars away from the
government. They argue that they cannot distance themselves too strongly from the law and the
signal that the Ugandan government is sending is not only to prosecute the minority groups, but
to the whole world.
222

The Kenyan religious leaders have equally supported the Ugandan law and called for its
enactment in Kenya.
223
Bishop Arthur Kitonga argued that gayism is not right and is unbiblical
and contrary to scripture. He strongly stated that those who are gays will be judged harshly by
God after this life and advised Kenya to follow Uganda in enacting a similar law.
224

Similarly, Nigeria had previously passed a law prohibiting same-sex marriages and contains
penalties up to14 years imprisonment. The president of Nigeria, Goodluck Jonathan signed the
law early this year despite there already being a federal law where sodomy is still punishable by
imprisonment.
225
He argued that the law is in line with the cultural and religious beliefs of the
country. There has been an argument that his signing of the Bill is a political tactic as he wants to

221
Ugandan Bishops Reserves Judgement on New Anti-Gay Law, http://ncronline.org/news/global/ugandan-bishops-
reserve-judgment-new-anti-gay-law at 1 March 2014, 12.30 pm
222
Ugandan Donors Cut Aid after President Passes Anti- Gay Law, http://www.theguardian.com/global-
development/2014/feb/25/uganda-donors-cut-aid-anti-gay-law at 1 March 2014, 12.37 pm
223
http://diasporamessenger.com/kenyans-laud-ugandan-anti-gay-law/ at 1 March 2014, 1.13 pm
224
Bishop Arthur Kitonga, Overseer Redeemed Church, interview on K24, Kenya Broadcasting Station on 25
February 2014, 9.00 pm
225
Nigerian Leader Signs Anti Gay Law, Drawing us Fire, http://www.reuters.com/article/2014/01/13/us-nigeria-
gay-idUSBREA0C10820140113 at 2 March 2014, 11.29 am
97

run for re-election and the new law pleases most people in Nigeria. The law limits the freedom of
movement and association of the homosexuals as it bans all gatherings of the homosexuals.
Further any person who supports the registration and operation of gay societies and organizations
commits an offence and is liable to ten years imprisonment.
226

I opine that when a law is passed there is a difference between what is written on paper and what
happens on the grounds. Enacting a law that criminalizes gays does not stop them from being
homosexuals, it just cautions them further to conduct their activities away from the public eye.
The point the likes of Jonathan Goodluck and Nderitu Njoka (chairman Maendeleo ya
Wanaume) are missing is that our jails are a conducive atmosphere for homosexuals to advance
theirs behaviors or begin and strive. Actually taking all the homosexuals to jail makes it easier
for them to engage in same sex relations without the fear of the law since they are already in jail
and we would be creating a situation worse than expected. The implication of this is that it has
been difficult to reach the gays who need HIV treatment. At least 30% of those who are gay are
infected with HIV and this forms 5.6% of the general population of those suffering from HIV,
which proportion then cannot be ignored. The homosexuals are in fear and are stigmatized and
potentials act of violence hence limiting access to health services which is a constitutional
right.
227

Therefore I think that African countries that still criminalize same sex relations should come up
with policies and strategies to curb the situation by first understanding these sexual minorities.
First we can simply allow and legalize same sex relations and the state should protect the
minorities from the homophobic violence. However this argument is countered by the arguments

226
Glum for Gays, http://www.economist.com/news/middle-east-and-africa/21594311-africas-most-populous-
country-joins-anti-gay-brigade-glum-gays at 2 March 2014, 11.34 am
227
John Muchangi, Most Clinics for Gays are Closed- Health Minister The Star, 1-2 March 2014, 3
98

of the like of Irungu Kangata
228
, who argues that in doing so we are opening doors to legalizing
victimless crimes as well such as suicide, FGM in cases where the girl has consented.
To that end maybe we can then come up with a policy where the homosexuals are allowed to
relate with each and exercise their right to freedom of association to the extent that they do not
do so in public places. They should hold their meetings in private places and do their actions and
express their love for each other behind curtains. However I still feel that this would amount to
discrimination on the part of the homosexuals in that the heterosexuals would be allowed to
exercise their freedom of association publicly. This would be unfair and unjust in that we only
protect those who are popular. History has proved that people are afraid of what they do not
understand. I therefore think that our society should first understand the situation of sexual
minorities in our society. We should then come up with a strategy where everyone is equally
incorporated in the society and equally protected and we should not discriminate against those
who are unpopular, we can never be alike. The policy should try and merge the non-legal issues
i.e. the social acceptance or rejection of these minorities and the legal issues whether we should
criminalize or decriminalize the act.
However a few African countries like South Africa, Guinea Bisau, Mali, Niger, Rwanda and
Djibouti have broken the taboo by accepting and legalizing homosexuality. There are arguments
that to dismiss homosexuals on the basis of religious and cultural values is laziness on the part of
the conservative African society. In that whereas Yoweri Museveni had the time to meet the
lawmakers and science experts, he failed to meet the LGBTI community, understand where they

228
Irungu Kangata, Mp Kiharu, Interview on K24, Kenya Broadcasting Station, 25 February 2014
99

are coming from and what their predicaments are.
229
It is therefore important to discuss what
measures SA has put in place to ensure the safety of the sexual minorities.
4.2: SOUTH AFRICA
As I compare South Africa with other African countries, it is important to note that South Africa
is more developed not only on the protection of human rights but also historically as compared to
other countries. The reasons behind this development range from the long period of colonization
to abundance of resource. Perhaps the most profound effect of post-apartheid project is the
equality clause in her Constitution under section 9. One key issue that emerged with the 1996 SA
Constitution is where homosexuals identities took on a public identity. It therefore seems that it
was a Constitution that was not tied up by religious values but integrally linked on a Bill of
rights.
230

Whereas apartheid rule policed and criminalized the sexual acts of homosexuals, the post-
apartheid in turn sexualized lesbians and gays identities thereby freeing homosexuals from the
clutches of pathological discourses. Therefore with the birth of a democratic society in 1994 and
constitutional protection of persons of diverse sexual orientation South African decriminalization
campaigns focused strategically on challenging unconstitutionality of discrimination of same sex
conduct based on human rights discourse.
The Kenyan Constitution has borrowed greatly from the SA Constitution which outlaws
discrimination on sexual orientation yet Kenya has found it very difficult to take this bold step
and follow suit. In particular Article 27 of the Kenyan Constitution, 2010 which outlines the

229
Ibid
230
Heinrich Boll Stiftung, Struggle for Equality: Sexual Orientation, Gender Identity and Human Rights in Africa,
http://www.za.boell.org/downloads/Perspectives_4-10.pdf at 3 March 2014, 3.49 pm
100

equality and non-discrimination clause
231
is quite similar to the provisions of Section 9 of the
South African Constitution, with a few changes here and there. Section 9 of the SA Constitution
provides that;
Everyone is equal before the law and has the right to equal protection and benefit of the
law.
(2).
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3). National legislation must be enacted to prevent
or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination is fair.
232

The Kenyan experts in the Constitutional Review Process, 2010 were aware of this clause but
ignored the grounds of sexual orientation in outlining the non-discrimination standards. Does it
mean those experts did not want to protect the interests of those with diverse sexual orientation
from discrimination and ensure their safety?
South Africa has a complex history regarding LGBTI rights. Recognition of these minorities
dates back to 1998 where the Constitutional Court in the case of National Coalition for Gay and
Lesbian Equality v Minister of Justice
233
struck down the laws prohibiting consensual sexual
activities between men. Basing its argument on the Bill of Rights in the Constitution particularly
its explicit prohibition of discrimination on ground of sexual orientation, the court unanimously
agreed that the crime of sodomy under criminal law was unconstitutional.

231
The Constitution of Kenya, 2010, Art.27
232
Constitution of the Republic of South Africa, 1996, s 9
233
(1998) ZACC 15, 1999 (1) SA 6 (CC)
101

The background of the case was that sodomy was a crime
234
and gay men were frequently
prosecuted under these laws. However the interim Constitution which came into force on 27
April 1994 indeed explicitly prohibited discrimination based on sexual orientation. Later the
final Constitution which came into force on 4 February 1997 contained a similar protection
clause. It is upon this clause that the applicant, a voluntary association of LGBTI people and of
70 organizations of LGBT in South Africa, joined by the South African Human Rights
Commission challenged the anti-sodomy laws.
They therefore prayed to the court to invalidate as unconstitutional the common-law offence of
sodomy and invalidate the inclusion of sodomy as schedule 1 offence in the Criminal Procedure
Act. They argued that because the offence applied to men and sexual activities between men
only; this was discriminatory based on gender and sexual orientation. They also argued that the
commission of the unnatural sexual offence was so vaguely defined and one would not be certain
what acts were criminalized.
The court ruled that the common law offence of sodomy was unconstitutional as well as the
provisions of the Sexual offences Act and the Criminal Procedure code. Sachs J. in that case
argued that invalidation of anti-sodomy laws would mark an important moment in the maturing
of an open democracy based on dignity, freedom and equality. That the future of a nation depend
on a large measure on how it manage difference. He had this to say;
A state that recognises difference does not mean a state without morality or one without
a point of view. It does not banish concepts of right and wrong, nor envisage a world
without good and evil. It is impartial in its dealings with people and groups, but is not
neutral in its value system. The Constitution certainly does not debar the state from
enforcing morality. Indeed, the Bill of Rights is nothing if not a document founded on
deep political morality. What is central to the character and functioning of the state,

234
Criminal Procedure Act (South Africa), Schedule 1
102

however, is that the dictates of the morality which it enforces, and the limits to which it
may go, are to be found in the text and spirit of the Constitution itself.
This was followed by the legal recognition of same-sex marriages which was greatly influenced
by the decision of the Constitutional Court in the case of Minister of Home Affairs and Another v
Fourie & Another
235
. The court ruled in favour of gay weddings and subsequently ordered the
South African parliament to amend its marriage laws in order for such laws to include same-sex
marriages.
236

The circumstances of the case were that, the applicants in this case were a couple who brought a
complaint to court that the law excludes them from publicly celebrating their love and
commitment to each other in marriage. The law hindered them from regularizing their union and
shut them out unfairly and unconstitutionally. They argued that the exclusion came from the
common law definition of marriage that it was a union of one man with one woman.
The court ordered that the common law definition of marriage was declared to be inconsistent
with the Constitution and void to the extent that it did not permit same-sex couples to enjoy the
status and the benefits coupled with the responsibilities it accords to heterosexual couples. It
further directed parliament to endorse same-sex marriages within twelve months and the same
would later be endorsed by the court.
It is on these recommendations that the South African Parliament passed the Civil Union Act,
237

by a vote of 230 to 41 and took the fifth position in the world to legalize same-sex marriages.

235
Minister of Home Affairs and Anotherv Fourie and Another (Doctors for Life International and Others, amici
curiae); Lesbian and Gay Equality Project and others v Minister of Home Affairs and others, (2005) ZACC 19
236
Peingondjabi Shipo, The Prohibition of Same Sex Marriages and its implications for Namibias Obligations in
terms of the Constitution, Various International, and Regional Human Rights Instrument (2010),
http://wwwisis.unam.na/theses/shipo2010.pdf at 12 February 2014, 3.17 pm
237
Civil Union Act (South Africa), 2006
103

While it was impossible for the homosexuals to marry under the Marriage Act
238
, the new law
allowed all citizens to marry including gays and lesbians. The preamble in the Civil Union Act,
notes that the family law dispensation as it existed after the commencement of the Constitution
did not provide for same -sex couples to enjoy the status and the benefits coupled with the
responsibilities that marriage accords to opposite sex couples. It further gave the partner the
option to refer to their union as civil partnership or marriage.
239

A civil union has been defined in the Act to mean, the voluntary union of two persons who are
both 18 years of age or older, which is solemnized and registered by way of either marriage or a
civil partnership, in accordance with the procedures prescribed in this Act to the exclusion while
it lasts of all others. The Act allows the partner to have their marriage registered and issued with
the certificate of registration. The certificate is a prima facie evidence that a civil union exists
between the partners referred to therein.
240

Despite its progressive laws in the area of sexual orientation, South Africa has not progressed
socially with the same measure as regards issues of gender identity. Although legislation has
been passed to protect these minorities, they still face a wide range of obstacles, phobias,
discrimination and hate crime. However the Constitution and the progressive laws provide a
legal basis from which they can fight for their rights. The availability of surgery is much higher
on the cases of intersex than the transgender. From a morally charged discourse there are
tensions between surgeons and very few would be willing to operate on transsexuals even though

238
Marriage Act (South Africa), 1961
239
Supra n.237, s 2(a)
240
Supra n.23, s 12
104

it is available. They view intersexuality as a disease while transsexualism is perceived
differently.
241

In 1996, SA was the first country worldwide to enshrine the rights of the transsexuals in its
Constitution. Thus it is a country that at least nominally protects transsexual persons to the full
extent. The rights of the intersex and transsexuals were not explicitly provided simultaneously.
The intersexes were clearly secured in the law in January 2006 through Amendment of Sec. 1 of
Act No. 4 of 2000, Equality Act
242
. That amendment extended the term sex to include intersex
in the Equality clause.
243
Intersex has been defined in that Act to mean a congenital sexual
differentiation which is atypical to whatever degree.
244
The same Act outlines the prohibited
grounds of discrimination among them being gender, sex and sexual orientation. From that time
the Constitution guaranteed protection in law to intersex people. However the implementation of
this clause is still at its initial stage. Even though intersex people are protected through the
Constitution, no certificates or legal documents are issued stating that intersex is the legal sex of
a person.
245

The South Africa Birth and Death Registration Act of 1963 allowed transgender persons to apply
to have their sex status changed in the birth register after sex reassignment surgery. However,
this provision was repealed in 1992
246
through Section 33 (3) which is to the effect that only a
person who was in the process of undergoing a change of sex prior to 1992 could apply. In
addition only ongoing transitions could be finalized but none could be initiated. As a result

241
Thamar Klein, Intersex and Transgender Activism in South Africa, http://www.academia.edu/809545/intersex-
and-transgender-activism-in-south-africa at 12 February 2014, 2.45 pm
242
Promotion of Equality and Prevention of Unfair Discrimination Amendment Act (South Africa), 2002
243
Ibid, s1
244
Ibid
245
Ibid
246
Births and Deaths Registration Act (South Africa) , 1992
105

nobody could legally start transitioning after 1992 to have the sex status adjusted in their
documents.
Prior to the repeal of this provisions, the statistics by the South African Law Commission
showed that 150 people with variations of gender identity were treated between 1969 and 1984 at
Groote Schuur in Cape Town alone.
247
Despite the inclusion of sex, gender and sexual
orientation in the Equality clause, this was not sufficient to guarantee the rights of transsexual
community. It was therefore through the Alteration of Sex Description and Sex Status Act
248
that
it became possible to apply for legal adjustment of ones sex description.
249
This was after the
South African Law Commission put into consideration the submissions of some groups and
activists that improvements and corrections should be inserted in the Bill that had been drafted so
that the Act now conforms to the Constitution.
250

That Act defines gender reassignment to mean process undertaken for the purpose of reassigning
a persons sex by changing physiological or other sexual characteristics, and includes any part of
such a process. Section 2 is to the effect that any person whose sexual characteristics have been
altered by surgical or medical treatment or by evolvement through natural development resulting
in gender reassignment, or any person who is an intersex may apply to the Director-General of
the National Department of Home Affairs for the alteration of the sex description on his or her
birth register.
251
Sexual characteristics have been defined therein to mean primary or secondary
characteristics, where primary characteristics means the form of genitalia at birth while

247
Supra n.241
248
Alteration of Sex Description and Sex status Act (South Africa), 2003
249
Supra n.241
250
Ibid
251
Supra n.248, s 2 (1)
106

secondary means those that develop throughout life and which are dependent upon the hormonal
base of the individual person.
252

If the director rejects the application then he or she must issue the applicant with written reasons
for the decision. The applicant whose application is rejected then has a right to appeal to the
minister of home affairs against the decision of the director-general.
253
If the minister rejects the
appeal, the applicant may apply to the magistrate of the district in which he or she resides for an
order directing the change of his or her sex description.
254
And if the magistrate allows the
application he or she must issue an order directing the Director-General to alter the sex
description in the birth register of the person named in the order.
255

If ones sex description has been altered he or she shall be deemed to be a person of the sex
description so altered as from the date of recording such alteration. In addition the rights enjoyed
or obligations that accrued to such a person before sex description alteration shall not be
adversely affected by that alteration.
256
In addition, if the application is allowed then the Director
General must then alter the sex description on the birth register of the person concerned as
required by Birth and Death Registration Act. That alteration shall be recorded and the person
concerned shall be entitled to be issued with an amended birth certificate.
257


252
Ibid s 1
253
Ibid s 2 (3); (4)
254
Ibid s 2 (5)
255
Ibid s 2 (9)
256
Ibid s 3 (2); (3)
257
Births and Death Registration Act (South Africa), 1992, s 27A
107

It is also important to note that the Yogyakarta principles have also been applied in South Africa
to underline the need for police training and protection of hate crimes in the face of continued
violence and the killings of the lesbians.
258

In addition South Africa has also recognized the transsexual employment rights and prohibits
discrimination in employment on grounds of gender identity. This has been upheld in various
cases where the court has held that dismissal on grounds of ones gender amounts to
discrimination. In Quinton Atkins v Datacentrix Ltd, Labour Court, South Africa
259
, the applicant
who was an IT technician filed a complaint of unfair discrimination when a job offer was
rescinded after disclosing that he had intention to undergo gender reassignment surgery.
During the interview the applicant failed to disclose the fact that he was undergoing sex
reassignment surgery. After accepting the offer he informed his prospective employer of his
intended transition. The offer was revoked and the company argued that the omission amounted
to misrepresentation which constitutes dishonesty.
The court rejected this argument arguing that even if he had disclosed this information they
would not have hired him in the first place and that there was no legal duty to disclose such
information. The court found unfair dismissal and unlawful discrimination based on sex and
gender and ordered compensation and written apology.
4.3: LGBTI COMMUNITY IN WESTERN COUNTRIES
It is important to note that even the Western countries are still struggling with issues of these
sexual minorities up to date. Even those countries that have now recognized their rights have

258
http://iglhrc.org/content/activist%E2%80%99s-guide-yogyakarta-principles-launched at 13 February 2014, 12.15
pm
259
JS 02/07 (2009)
108

fought these battles for a number of years. For instance homosexuality was legalized in England
and Wales in 1967 in the case of Dudgeon v UK
260
where sex between two men in the privacy of
their own home was legalized. The same law was expanded in Scotland in 1980 and then in
Northern Ireland in 1982.
261
In Russia the law is worse and the 2013 law against homosexuality
even prohibits any positive mention of homosexuality in the presence of minors.
262

In US only 17 out of 54 states legalizes same sex relations with most parts of the Latin America
retaining the standard for equality for LGBTI rights. In Argentina Gender Identity Law 2012
allowed the change of gender on births certificates for transgender persons and legalized same
sex relations in 2010. In Mexico the law allows equal marriage and adoption. In a nutshell the
developed countries are moving towards the recognition and protection of these minorities and
gaining a positive attitude towards them despite a few who still criminalizes the same sex
relations.
263

Netherlands is an example of a European country that has developed over time in regard to the
rights of the LGBTI. It is therefore important to discuss the history of Netherlands and why then
it was the first country to recognize same sex relations. I will also discuss the legislations that
have been enacted to ensure the safety and full enjoyment of rights by these minorities.
4.4: NETHERLANDS
Netherlands is a country that has always held a very liberal stance towards the rights of the
LGBTI community and in general the human rights of everyone not only persons of diverse
sexual orientation or gender identity. The fight for the rights of these persons based on sexual

260
(1981) 4 E.H.R.R 149
261
http://answers.yahoo.com/question/index?qid=20100529021517AAybCT5 at 2 March 2014, 12.38 pm
262
http://76crimes.com/76-countries-where-homosexuality-is-illegal/ at 3 March 2014, 12. 49 pm
263
Gays Around the World: The Best and The Worst Countries for Equality,
http://www.theguardian.com/world/2013/jul/30/gay-rights-world-best-worst-countries at 3 March 2014, 12.56 pm
109

orientation began in the early 1900s. Throughout the periods of 1920s and 1930s many
government funded research facilities studied the phenomenon and much research have been
conducted in the field of sexual orientation. With the invasion of Nazis during the 1940 and
with the introduction of their laws which made homosexuality illegal, all research was halted.
With end of World War II and the defeat of Nazi the research began again.
264

While most countries still criminalized acts between homosexual adults, Netherlands became the
first country in the world to carry out legal same-sex marriages on 1 April 2001. The statistics by
the Netherlands National Statistics showed that 15,000 gay couples have married since 2001.
However even in Netherlands the tolerance for homosexuals is limited. First, the strict
immigration rules planned by the center-right government ensure that unmarried people would
no longer be able to bring non-European partners to live in Netherlands. This adversely affects
gay couples who cannot get married elsewhere without first coming back to their country.
Moreover, the Netherlands reputation for tolerance for homosexual marriages has been dented by
recent violent attacks against homosexuals.
265

As regards the recognition of the transgender community, Netherlands was among the first
European countries to adopt legislation enabling transgender people to change their registered
gender. The Dutch Civil Code Article 28 provides how the transsexuals can change description
of gender in the birth certificate. It provides that;
Every person of Dutch nationality who is convinced he is of another gender than marked
on his birth certificate and who is physically adjusted to the desired gender insofar this is
possible and acceptable from a medical and psychological point of view, may request the

264
A history of LGBTI in Netherlands, http://www.worldissues360.com/index.php/a-history-of-lgbt-rights-in-the-
netherlands-1035/ at 3 March 2014, 4.47 pm
265
Dutch Gays Dont Take Advantage to Marry,
http://www.globalpost.com/dispatch/news/regions/europe/benelux/110419/netherlands-gay-rigt-same-sex-marriage
at 13 February 2014, 2.30 pm
110

District Court to order a change of the description of his gender on his birth certificate, if
this person is marked on the birth certificate as a male and he is definitely incapable of
procreating children or if he is marked on his birth certificate as a female and he is
definitely incapable of giving birth to children.
(2)
(3) A person not of Dutch nationality may file a request referred to in paragraph 1 if he
has a valid residence permit and he has his domicile in the Netherlands for at least one
year before filing the request, provided that he meets all other requirements of paragraph
1. If his birth certificate is not registered in the Netherlands in a register of civil status,
the District Court must be requested also to order the registration of the birth certificate in
the register of births of the municipality of The Hague.
266

This change of description of gender has legal effects arising from the Civil Code and shall not
affect the familial relationships nor any rights, powers and duties resulting from the Civil Code
on account of these familial relationships.
267

However there were several complaints from human rights activist groups including Human
Rights Watch in Netherlands that the Dutch Civil Code, Article 28 violates the human rights of
the transgender and the same should be amended without delay. They argued that it violated their
rights in the sense that it required transgender people to take hormones and undergo surgery to
alter their bodies and be permanently and irreversibly sterilized before they can have their gender
legally recognized on official documents. Legal recognition should not be made conditional on
any form of medical intervention.
268

In response the government passed the Gender Identity law and the transgender will no longer be
required to be sterilized or undergo surgery in order to change their gender identity on official
documents. The new law which is expected to take effect as from July 2014 enables the
transgender aged 16 years and older to change their gender identity on the birth certificate and

266
Dutch Civil Code, Art 1:28
267
Ibid 28 (c)
268
The Netherlands: Transgender Law violates Rights http://www.hrw.org/news/2011/09/13/netherlands-
transgender-law-violates-rights at 13 February 2014, 10.50 am
111

other official documents with only a statement from an expert testifying to their desire to change
their gender identification.
269

The Bill was first proposed in 2011, and was passed on 17 December 2013 in a 51 to 24 votes.
Netherlands has history of implementing forward-thinking legislations as regards the LGBTI
rights. As early as 1971, lawmakers mandated equal ages of consent for both homosexuals and
heterosexual relations. In approving the new law the law makers put into considerations calls
from critics for the Netherlands to follow the recommendations from the Yogyakarta principles,
which have been endorsed in that country. These rights include the right to privacy and the right
to work and further allow all persons to define their own gender identity.
270

It is also worth noting that the Dutch government subscribes to the Yogyakarta principles on the
application of international human rights law in relation to sexual orientation and gender
identity.
271
On 25 April 2008, the then Minister of Foreign Affairs gave a speech on human
rights policies in relation to sexual orientation and he greatly supported the implementation of
the Yogyakarta principles stating that;
The Yogyakarta Principles, which present an overview of human rights and fundamental
freedoms in relation to sexual orientation, are a great help in informing our policies. In
my statement to the Human Rights Council last month, I called upon all governments to
embrace them. I am pleased that the Dutch House of Representatives adopted a motion
supporting my statement, and requesting the President of the House to bring the
Yogyakarta Principles to the attention of other parliaments on the International Day
against Homophobia on 17 May.
He further states that tradition, culture or religion should not be used as an excuse to depart from
internationally accepted human rights standards. There are no circumstances that allow for

269
http://www.buzzfeed.com/lesterfeder/the-netherlands-passes-landmark-gender-identity-law at 13 February 2014,
11.25 am
270
http://hrbrief.org/2014/01/dutch-senate-approves-transgender-rights-bill/ at 13 February 2014, 12.17 pm
271
http://geneva.nlmission.org/news/2012/02/the-netherlands-is-advocating-for-gay-rights-in-the-human-rights-
council.html at 13 February 2014, 12.10 pm
112

human rights violations: human rights apply to all people, at all times and in all places. This
simple rule lies at the heart of the Dutch government's human rights strategy; human rights apply
to everyone, and that includes lesbian, gay, bisexual and transgender people.
272

The Constitution of Netherlands opens with the equality and non-discrimination in Article 1
which is to the effect that, all persons shall be treated equally in equal circumstances. Further,
discrimination on the grounds of religion, belief, political opinion, race or sex or on any other
grounds whatsoever shall not be permitted.
273

In a nutshell enacting new legislation to ensure proper protection of the transsexual community
in Netherlands signifies that the country is following a growing trend in Europe to enforce the
rights of these minorities as well as reasserting itself as a leader of progressive legislation in this
field.
274

Moreover the Equal Treatment Act, Netherlands defines discrimination to include direct and
indirect discrimination, where direct discrimination involves discrimination against persons on
grounds of sex, heterosexual or homosexual orientation or civil status among others. On the other
hand indirect discrimination involves discrimination on other grounds other than those listed in
direct discrimination that results to direct discrimination.
275

The Act also provides the victims of discrimination with an important venue for redress by
establishing the Equal Treatment Commission. The Commission has power to conduct
investigation either after a written request or through its own in initiative to determine whether

272
ibid
273
The Constitution of the Kingdom of Netherlands, 2008, Art 1
274
http://hrbrief.org/2014/01/dutch-senate-approves-transgender-rights-bill/ at 13 February 2014, 11.46 am
275
The Equal Treatment Act (Netherlands), s 1
113

discrimination has taken or is taking place and may publish its findings. In forwarding its finding
it may make recommendations to the person guilty of discrimination.
The ETCs general objective is to promote the implementation of the anti-discrimination
legislation. By giving non-binding opinions, it interprets the law and gives recommendations on
how to comply with the law. Group actions are also allowed: interest organizations may file a
complaint on behalf of the people they represent and this is an important vehicle to combat
structural forms of discrimination. Proceedings before the ETC are free, legal assistance is
neither required nor necessary because the ETC itself plays an active role in investigations of the
complaints.
276

Everyone is obliged, unless they are exempt on the grounds of official or professional
confidentiality, to provide the information and documents required in full and in accordance with
the truth, in the manner and within the time-limit laid down by or on behalf of the Commission.
This obligation shall not apply if, in this way, a person would expose themselves or a relative by
blood or marriage, in the direct or indirect line to the second or third degree, or his spouse or
former spouse to the risk of criminal prosecution for an indictable offence.
277

From the foregoing therefore due to its lack of prejudice toward sexual orientation and its firm
belief in equal rights for all people, the Netherlands has shown that it is a country built upon
tolerance and the acceptance of individuals for who they are.



276
Janny R. Dierx and Peter R. Rodrigues, The Dutch Equal Treatment Act in Theory and Practice,
http://www.errc.org/article/the-dutch-equal-treatment-act-in-theory-and-practice/1400 at 24 February 2014, 12.36
pm
277
Supra n.275, s 19
114

4.5: CHAPTER SUMMARY
From the foregoing it is clear that the struggle for recognition and acceptance of the LGBTI
community might take several decades. To ensure protection of these minorities we must come
up with strategies and policies that will reduce the social stigma directed towards them, first
through civic education where the masses are educated and clearly understand where the LGBTI
are coming from. After that we can enact legislations that make it legal for transsexuals to have
legal adjustment of the sex description in SA. Kenya can amend the Births and Deaths
Registration Act, to allow those who undergo gender reassignment surgery to change their
gender description to conform to the new assigned gender. However it is still notable that even in
these countries where the rights of the third gender have been developed, they are still facing
challenges in gaining the social acceptance.
The struggle for recognition of these sexual minorities in Netherlands started has taken several
years and they are still fighting for their inherent rights. The recognition of same-sex couples was
as early as 1811 and legalization of these marriages took place in 2001. Even though legislation
has been enacted and institutional framework put in place to ensure that these minorities are not
discriminated there is still more to be done. For instance, the ETC faces various limitations
including the fact that they cannot consider complaints about the police. In addition they provide
protection mainly in area of private law and most of the public sector is excluded. Therefore we
cannot push the Kenyan government to accept these minorities and enact legislation that
recognize them in one year or so whereas even in countries where the rights of the minorities are
well developed have taken over 200 years. However we must come up with strategies to begin
with the first step by educating the public on diversity of human beings. Therefore the new law
in Netherlands is an important step towards equality for transgender people. It puts people in a
115

much stronger position to change their gender in the birth register without intrusive and abusive
medical requirements. I opine that Kenya can borrow so much from these two countries even
though it might take decades to reach where these countries are. We can begin by enacting a
legislation allowing the transsexuals to be accorded the gender reassignment surgery and be
required to change their gender in official documents.
116

CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS
5.0: INTRODUCTION
This study set out to examine the plight of the LGBTI community with particular interest on how
they have been discriminated against and ways of remedying such discrimination. It has been
established that there is a lacuna in Kenyan legislation, in that it does not capture gender identity
and sexual orientation as grounds prone to discrimination. With reference to chapter three, it is
clear that the omissions in the Prisons Act and the Births and Deaths Registration Act have made
it easy for the perpetrators to advance their discrimination against the minorities. In addition such
gaps in the law have been exploited by medical officers who deny the intersex and transgender
gender corrective surgery on the ground that the law has not provided any policy on the same.
This study sought to explore the possibility of incorporating the Yogyakarta principles into
Kenyan laws. From the discussions in chapter two the importance of these principles has been
established and how other states like Netherlands have applied the same to shape their domestic
policies in protecting sexual minorities. Even though these principles have not passed the criteria
of a soft law they could however be used as guidelines to ensure the safety of these minorities.
It is clear that Kenya needs to audit the discriminatory laws or enact a new legislation that
protects the rights of the LGBTI. In doing so, the Yogyakarta principles can come in handy.
Kenya can alternatively come up with policies that would facilitate realization of rights which
protect sexual and gender choices.
In addition it has also been shown that the international community has been concerned with the
increased risk of human rights abuse of LGBTI and in response has come up with legal
provisions and guidelines to protect them. The approach adopted is one that demands protection
117

of these minorities. This is expounded by earlier discussions on ICCPR, ICESCR, UDHR and
the Yogyakarta principles under chapter two. The international human rights committees under
these international instruments have interpreted the term other status to include sexual
orientation and gender identity.
278
Therefore if the international law provisions touching on
rights of persons of diverse sexual orientation and gender identity are applied in Kenya under
Articles 2 (5) & (6) of the Constitution, it would better the safety of LGBTI community and
enhance their protection.
5.1: CONCLUSION
From the foregoing, it is clear that discrimination and rejection of the LGBTI community is a
serious problem and impacts a lot on the lives of those who are victims. It is an issue that
demands immediate attention and remedy. Even though there are differences on the challenges
faced by each category; lesbians, gays, intersexes, transgender and bisexuals, there are some
common issues affecting them.
Some of the disadvantages and sufferings they experience vary as the age changes. These include
harassment by state officials, social stigma and exclusion by family and society in general,
violence coupled with homophobic sentiments and threats of deaths, poor access to health
services, expulsion from learning institutions and loss of jobs and hindrances to secure formal
employment.
The most common causes of these discriminatory treatments include the dominance of traditional
religious and social attitudes towards marriage, gender and family and its role. In addition
limited knowledge on the issues of human rights diversity by most members of the society could

278
See Chapter Two, Toonen v. Australia (Communication No. 488/1992); Young v Australia (Communication no.
941/2000, U.N. Doc. CCPR/C/78/D/941/2000 (2003)) and Lawrence v Texas (2003) 539 U.S. 558; 123 S. Ct. 2472
118

also contribute to the discrimination of the LGBTI community. The root cause of all these issues
is thus the stigma directed towards persons of diverse sexual orientation and gender identity as
they do not conform to the accepted social norms in our society.
The situation shall continue to worsen as the state has not accorded any protection to these
minorities either through legislation or come up with policies as has been done on discrimination
against disabled persons and those infected with HIV/AIDS. The law has even made it worse by
criminalizing the acts of homosexuals with a jail term and hence allowing or even legalizing the
acts of those who discriminate and reject these sexual minorities. The law has then made it easy
for the police or even non-state agents to harass these minorities on the premise that they are
conducting searches and investigations.
Though there have been few prosecutions under the provisions of the Penal Code provisions in
recent years, statistics have shown that 356 gay men reported being harassed by police seeking to
blackmail or extort money from them. The law is as well is discriminatory in itself in that it
prohibits same sex relations between two men but does not explicitly prohibit the acts of
lesbians. This then amounts to discrimination on grounds of sex and the act of gays are equally
the same as those of homosexuals. Or does it mean that the law allows lesbians in this country on
grounds of this omission? In addition when Uganda passed the most controversial law
prohibiting same sex relations, Maendeleo ya Wanaume chaired by Nderitu Njoka were on the
fore front supporting the same and claimed that Kenya should follow the same path. However it
is notable that Maendeleo ya Wanawake has been silent and have not made any comment or
recommendations. Does this mean that even the society itself accepts the acts of lesbians and is
only against gays?
119

The discrimination and violence directed against these individuals affects them adversely and
they can no longer lead a normal life. First their life is threatened and they live in fear. This
makes it difficult to ensure that they access the required health services and it has been
mentioned previously that 30% of the homosexuals are HIV positive and this number cannot be
ignored. It makes it difficult to offer them the counseling services they need as some of them are
depressed due to social stigma and should be advised on how to lead a healthy life when infected
with the virus. There is therefore an urgent need to protect these minorities from the sufferings
and miseries.
Prior to the 2010 Constitution, it is notable that there was an increment in protection of
discrimination of the vulnerable groups. For instance, the following legislation were enacted, the
Children Act 2001, the Persons with Disabilities Act, HIV and Aids Prevention and Control Act
and Employment Act. There seems to be inconsistency on protection of persons against
discrimination. One can then ask what the criteria used for protecting a specific vulnerable group
from exploitation and discrimination by the majority is.
In addition this has amounted to violations of their constitutional rights including, non-
discrimination and equality, right to life, right to human dignity and protection from cruel,
inhuman and degrading treatment among others. It is notable that human rights are inherent and
inalienable and they are not granted by the state and the role of the state and the law is to give the
human rights a back up. This is therefore a violation of Chapter four under the Kenyan
constitution 2010 and also international human rights discussed previously enshrined in ICCPR,
ICESCR, UDHR and African Charter on Human and Peoples Rights.
120

Kenya has ratified all these conventions and they form part of the Kenyan law under Articles 2
(5) and (6) of the Constitution, and as a state party she is bound to fulfil the obligation under the
Charter. The Constitution of Kenya, 2010, Article 21 requires the state to enact and implement
legislation to fulfil its international obligation in respect to human rights and freedoms. In
addition these international conventions have previously held that discrimination on grounds of
sexual orientation and gender identity is not justifiable in an open and democratic society.
Therefore the LGBTI community should be allowed to enjoy their rights including human
dignity, right to life, right to privacy and protection from cruel and degrading treatment among
others.
There is a lacuna in the Kenyan law as regards to the protection of the rights of the sexual
minorities. Due to lack of specific and comprehensive legislation on the rights of sexual
minorities violation of their human rights has been and will continue being rampant. The
continued existence of the discriminatory law discussed previously; Penal Code, Births and
Deaths Registration Act, the Prisons Act among others make it easy for discrimination and
harassment of these minorities. It has been argued that if ones sexual status subjects him to
discrimination it is then a proper ground for constitutional protection from such discrimination.
The law should then not only protect those who are popular and leave out those who we dont
like.
Realization of the rights of the transgender persons; those perceived to be of diverse gender
identity as well as LGBTI community in general is about core development issues just like other
pressing issues such as poverty, HIV/AIDS, access to health care. It requires incorporation of
this minority in the society on equal basis with others.
121

From a broad point of view in the light of minorities and indigenous people, minority rights as
applied to ethnic, religious or linguistic and indigenous people or new evolving vulnerable
groups e.g. sexual minorities are an integral part of international human rights law. Minority
rights are a legal framework designed to ensure that a specific group which is vulnerable,
disadvantaged or marginalized in society is able to achieve equality and be protected from
discrimination.
279

In 1992 by consensus the UN Minorities Declaration
280
was adopted as the primary UN
document dedicated to the rights of the minorities. It aims at achieving international cooperation
in promoting and encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language or religion and importance of effective
implementation of international human rights instruments with regards to these groups
mentioned. Although the declaration was adopted 20 years ago, its provisions have not been fully
implemented. Persons belonging to minorities are still often at risk of being discriminated
against, and with their unique position of being distinct from people that belong to the majority
population.
281

Despite the foregoing it has been argued that even though human rights are inherent and
inalienable and not granted by the state there is a limit to human rights. The limitation clause
under Article 24 of the Constitution then requires that the rights should not be limited except by
law and such limitation should be reasonable and justifiable in an open and democratic society.

279
Minorities under International law, United Nations Human Rights,
http://www.ohchr.org/EN/Issues/Minorities/Pages/international law.aspx at 11 March 2014, 10.57 pm
280
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities,
adopted in New York 18 December 1992.
281
United Nations Human Rights council, Panel to Commemorate the 20
th
Anniversary of the Adoption of the
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities,
http://eas.europa.eu/delegations/un-geneva/eu-statments/human-right/2012/20120314-01-en.htm at 11 March 2014,
11.03 pm.
122

The rights can therefore be limited if they injure the rights of others. There are those who argue
that there two spheres of life; the public realm and the private realm and the state should then not
interfere with what is done in the private realm. However Hon. Irungu Kangata has argued that
even what is done in the private realm affects the society in one way or the other. For instance in
a case where a husband who is a bisexual, has a wife as well as a clandestine who is a male, in
this instance his actions with the clandestine though done in their private life affects the wife and
hence become a concern of the society. Another example is where a homosexual engages in a
sexual intercourse with a minor or a person of unsound mind. Such issues affects the society in
one way or the other and hence entitled to interfere in such cases even though done in private
life.
In conclusion therefore even though homosexuality is criminalized under the Penal Code there
have been very few convictions under this provision of the law. In addition even though the
constitution 2010 is the most comprehensive constitution we have ever had as regards the issue
on Bill of Rights, very few suits have been instituted by the LGBTI individuals when their rights
are violated. The cause could range from the fact that some are not even aware that they posses
such rights to how the police deal with such reports when brought to their attention.
However in the few instances when the court has been asked to adjudicate on such issues there
seems to be dividend minds or different judges have adopted different opinions. In the earliest
case of R.M. v Attorney General & 4 others, the court seemed reluctant in recognizing the
existence of these minorities despite the suffering they undergo. It was of the opinion that their
hands are tied if parliament has not enacted any law as regards these issues. However of
importance was the issue that the petitioner right to protection from cruel, inhuman and
degrading treatment had been violated and ordered that he be compensated. In the case of
123

Alexander Nthungi the court held that his right to privacy had been violated and ordered he be
compensated. The court seems to accept the existence of the transgender in our society even
though it did not explicitly state so.
In these two cases the court adjudicated on the matter as at the circumstances at hand. They did
not set down principles or a specific approach on how future cases may be dealt with. They could
have utilized the opportunity to recommend to parliament to enact a specific legislation to protect
these minorities or amend the discriminatory laws to conform to the Bill of rights under chapter
four of the Constitution. It has come a time when the state and society should recognize these
minorities and ensure their safety and protect their rights and recognize and treat them as human
beings.
5.2: RECOMMENDATIONS
In light of the above I therefore recommend the following;
5.2.1: Education and Sensitization of the public
The state should organize and conduct civic education to enlighten people on the diversity of
human beings as well as human rights. This may assist in changing the public opinion towards
the LGBTI community and understand where they are coming from. We should realize that
people have limited knowledge even on the meaning of the terms gays, lesbians, transgender,
bisexual or transsexuals. To make it easier this can be supervised by the county governments
who will ensure that people are educated on these issues at the location level. This can be done
by educational institution, religious leaders, media houses and even employers. I appreciate the
religious leaders are in the fore front to condemn gay rights, but they should remember Jesus
124

came to save the lost and not those who are upright. They should therefore embrace these
minorities with love and encourage the rest of the society to do so.
5.2.2: Review of the education syllabus by the Ministry of education.
282

The ministry should ensure that all children enjoy their right to free and compulsory primary
education. They should come up with measures to ensure that those who are transgender or
hermaphrodites are not looked down upon by other children. To achieve this they can review the
syllabus maybe in the social studies subjects and incorporate the contemporary issues of the
LGBTI community. In doing this they will correct the misguided and misplaced conception
about these minorities. They should be taught on the equality of everyone in the society and the
tolerance of those who are not popular amongst us or alike. In addition it will make such victims
who are students to be accepted by other students and ensure a conducive environment for
learning.
5.2.3: Access to health care services
The ministry of health should issue guidelines and policy to ensure that the LGBTI have access
to affordable health care. It has been indicated that homosexuals are prone to being infected with
HIV/AIDS virus. The ministry should then ensure that those who are infected have access to
counselling services and the necessary medication. As regards the issue for corrective surgery for
intersex and transgender the ministry should ensure that these facilities are in public hospitals
and affordable. The personal moral opinion of a Minister of Health should not be allowed to
deny the transgender and intersex their right to reproductive health care. This was witnessed
during the era of Hon. Anyang Nyongo as the Minister of Health when he denied Audrey

282
The Kenya Human Rights Commission, The Outlawed amongst us: The Study of the LGBTI Communitys Search
for Equality and Non-discrimination in Kenya (2011), http://www.khrc.or.ke/component/docman/doc-details/14-
the-outlawed-amongst-us.html at 11 March 2014, 11.51 pm
125

Mbuguas request to undergo the surgery. In addition the surgery should not be allowed with so
many conditions especially when the victim is an adult.
5.2.4: Promote and Respect for Human Rights
Kenya is a democratic society and the values that underlie such a society are based on human
dignity, equality, equity and freedom. The purpose of recognising and respecting human rights is
to preserve the dignity of individuals and communities and the realization of the potential of all
human beings. It is a fundamental constitutional duty of the state and every state organ to
observe, respect, protect, promote and fulfil the rights and freedoms.
The state and society should therefore join hands in protecting individuals from the violation of
their human rights especially those who are vulnerable. Even the judges while interpreting the
Bill of Rights should promote the spirit and the objects of the Bill of rights. The society in their
actions should ensure that the spirit of bill of rights we voted for is realised.
5.2.5: Comprehensive Equality and Non-discrimination Legislation
The legislature should enact legislation on equality of all persons and set the non-discrimination
standards in our society. In doing so we will not only protect the sexual minorities but those who
are vulnerable and no one is talking of their rights openly or no one is ready to invest his or her
resources to advocate for their rights. For instance sex workers and prisoners, these vulnerable
groups.
Such a law would then be important to protect the minorities who have not been captured in the
law or the law is inadequate to ensure their rights are protected and their predicaments have not
been discussed openly but they are still suffering. Such legislation should also include a penal
clause for non-compliance with the law and the procedure of dealing those who do not comply
126

with such law. In addition the legislature should audit all the discriminatory laws and ensure they
conform to the Constitution which is the supreme law of the land.
5.2.6: Expand the constitutional non-discrimination standards
In addition the Constitution should be amended under the procedure outlined in Chapter sixteen
of the Constitution to expand the non-discrimination and equality clause under Article 27 of the
constitution. The clause should prohibit discrimination on grounds of sexual orientation and
gender identity and the words other status should be included so that the clause is given a wider
interpretation. The words other status would be very useful in future when new issues arise and
legislature may not have contemplated on such issues, we must appreciate that change is
inevitable.
5.2.7: Implement the international legal instruments and the policies guided by
recommendations of the Yogyakarta principles
As stated, international principles and treaties form part of the Kenyan law. Parliament should
then integrate these laws to the Kenya law especially the recommendations of the Yogyakarta
principles. We have noted that in interpreting international treaties, courts and commissions have
recognized the rights of the LGBTI community and have held discrimination on grounds of
sexual orientation and gender as not justifiable. Kenya should then import these concepts as well
allowing application of international law in our courts. In doing so, we can come up with policies
to protect these minorities and in doing so we can put into considerations the recommendations
of the Yogyakarta principles.
127

5.2.8: Have the interests of LGBTI captured in a government ministry probably the
ministry of gender
283

The government should also capture the issues of the LGBTI in one of its ministries to ensure
that their grievances are looked into. It may not be necessary that there should be a specific
ministry for LGBTI as that might be absurd but they can be incorporated in ministries such as
gender. Such a policy might make it easier to conduct civic education on the historical injustices
against these minorities. It will help the society and political leaders as well correct their
misunderstanding on the issues surrounding the LGBTI that underlies the homophobic and
transphobic sentiments.
The ministry will ensure that there is some money allocated to these minorities to ensure that
they are protected and live a normal life like other human beings. Since it is difficult for the
transgender to secure formal employment due to their discrepancies in their documents and
physical appearance such funds may be used either through credit or grants to enable them start
business projects.
5.2.9: Protection of Sexual Minorities under the UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992
This declaration as stated previously is devoted to national, ethnic, religion and linguistic
minorities. The LGBTI community being termed as sexual minorities should be protected
under this declaration protecting the minorities in terms of national, ethnic, religious or
linguistic. There is no internationally agreed definition as to which groups constitute minorities.
It is often argued and stressed that the existence of a minority is a question of fact and that any
definition must include both objective factors and subjective factors. The objectives include

283
ibid
128

ethnicity, language or religion and on the other hand the subjective factors include that
individuals must identify themselves as members of a minority. Under the subjective test then
LGBTI community could identify themselves as a minority. According to the UN special
Rapporteur in 1977 a minority refers to a group numerically inferior to the rest of the population
of a state, in a non-dominant position whose members being nationals of the state possess ethnic,
religious or linguistic characteristics differing from those of the rest of the population.
284

While this declaration is devoted to national, ethnic and religious minorities it is also important
to address a situation where a person belong to an ethnic, religious, national or religious minority
and is also discriminated on grounds of sexual orientation and gender identity. This therefore
calls for a general comment to expand the list of minorities protected under the declaration to
include persons of diverse sexual orientation and gender identity. In addition the UN may adopt
another declaration protecting minorities that will cover the new groups that are evolving inferior
from the majority population and are prone to discrimination, such as persons infected with
HIV/AIDS or persons suffering from pandemic diseases or sex workers.

284
Supra n.278.
129

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