By Wafula Wakoko
If history and the writings of theologian Martin Niemöller taught us anything, it is that the law ought to protect the powerless. Those of us who’ve been afforded capacity to use logic have a duty to make conversations centring on the protection of minorities commonplace. Not because we shall soon need protection from someone, and we well may, but because we have been blessed with reason. The doorstep phenomenon – I will only shout if it affects me directly – is the force behind normalised infringement of rights. Let us shout now.
A glance at history paints the Second World War an inflection point in the history of mankind as it provoked the international community to device mechanisms for protecting human rights. The atrocities committed during the war informed the formulation of the Universal Declaration of Human Rights (UDHR). The overarching rationale of the UDHR was and is to prevent a repeat of the human rights violations. Articles 6 and 7 that speak to equality and non-discrimination are paramount: we all are equal before the law.
In the human rights circles, the decision in ‘Baby ‘A’ & another vs Attorney General & 6 others [2014]’ is a considerable step towards protecting intersex persons in Kenya. Amongst the court’s orders is the development of regulations on corrective surgery for intersex persons.
The judgment in ‘Baby A’ was a paradigm shift from ‘Richard Muasya vs Attorney General & Others’ [2007], where the Court regarded intersex persons as a sheer academic endeavour. The Court noted a lack of evidence to illustrate that intersex persons exist in Kenya – it should not be lost on us that Richard Muasya (who was before court) was/is an intersex person. The question is, is an individual not the most vulnerable unit in a minority group? Is the enjoyment of rights linked to numbers in that the court can only protect many and not few? The legal protections and privileges laid down in the Constitution do not exist to satisfy the stereotypical concepts of aesthetics; they are meant to have the force of law – to all.
With the dawn of Baby A’s decision, it is justifiable to anticipate that performance of corrective surgeries, if any, will consider the best interest of the person in question.
Medical practitioners are obliged to adhere to the Latin bioethics maxim primum non nocere – first, do no harm. It is a principle in healthcare which demands that a physician’s intervention should not cause harm. It requires physicians to refrain from offering medical services whose impact is uncertain.
As a panacea to determining when to carry out medical procedures, the maxim is limited to the extent that a substantial number of medical procedures have both elements of benefits and risks. Be that as it may, recent history of corrective surgeries is proof that children have never been at the centre of correction. Instead, parents and some medics have been motivated with the need to categorise new-borns in a distinct gender; either male or female.
Corrective surgeries, if performed, should be pursuant to informed decisions based on correct information on the risk and benefits of the procedure. Physicians should desist from propelling parents to subject their children to normalising surgeries in the face of glaring irreparable harm. In fact, there is no evidence that an intersex person, by dint of intersexuality such as ambiguous genitalia, is exposed to health risks.
Kenya is a country where the already faint light for the minorities is put out by the myths created by the majority in the form of religion and tradition. Gaining ground is the analogy that God has accorded mankind the means to correct health anomalies and thus new-borns should at the first instance undergo corrective surgery. This line of reasoning, if indeed it is reasoning, should be arrested before trespass on persons becomes normalised.
The Constitution of Kenya has elaborate provisions on the entitlements of Kenyans. Amongst the rights that cannot be limited is the freedom from torture and cruel, inhumane or degrading treatment.
Addressing frustrations of parents and stereotypes of the society by exposing our children to surgeries that are devoid of value is torture. Continued involuntary corrective surgeries make our Constitution, to a pronounced extent, a beautiful dream that loses meaning an intersex person wakes up.
We must remember that after it fills up in our neighbour’s, it will spill into our homes. (
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