Africa
Landmark intersex rights law takes effect in Kenya
Activists praise Children Act 2022
A new law that took effect late last month in Kenya has granted equal rights and recognition to intersex people
Intersex people are now recognized as Kenya’s third gender with an ‘I’ gender marker in response to the Children Act 2022. Kenya is the first African country that has granted the intersex community this universal right.
The new law requires intersex children to be treated with dignity and have equal access to basic services like medical treatment and education, in addition to social protection services as a special need. It also requires the accomodation of intersex children in child protection centers and other facilities.
Courts are also required to consider the needs of intersex children who are on trial — including the calling of an expert witness — before they issue any ruling. The law further stipulates that anyone can be a foster parent without restrictions of gender, age or marital status.
It also protects intersex children from so-called sex normalization surgeries, and such procedures will only be done with a doctor’s recommendation. Those who violate the law will face at least three years in jail and a fine of at least $5,000.
“This is a great and major milestone globally for Kenya. We are now way ahead and can teach our neighbors and the whole globe good practices,” said Jedidah Wakonyo, a human rights lawyer and former chair of the Intersex Persons Society of Kenya.
The long journey for recognition started dramatically in 2006 when some human rights organizations petitioned courts about a detainee who had been accused of a violent robbery.
Authorities perceived the suspect was a man after police strip-searched him before he entered prison.
This followed numerous court battles by intersex people who demanded the right to recognition as another gender in their birth certificates.
Being denied birth certificates from the discriminatiory law that only recognized male and female genders further limited their access to national identity cards, passports and other crucial documents and government services.
The Births and Deaths Registration Act under the new law’s Section 7 (3) “shall take measures to ensure correct documentation and registration of intersex children at birth.”
Intersex people commonly have a combination of male and female gonads (ovaries or testicles) or ambiguous genitalia.
Wakonyo, who also chaired the Intersex Persons Implementation Coordination Committee and was named the International Court of Justice’s 2020 jurist of the year, describes the law’s enactment as a historic moment because of its comprehensive definition of an intersex person.
It defines an intersex child as “a child with a congenital condition in which the biological sex characteristics cannot be exclusively categorized in the common binary of female or male due to inherent and mixed anatomical, hormonal, gonadal or chromosomal patterns which could be apparent before, at birth, in childhood, puberty or adulthood.”
Kenyan law considers anyone under 17 to be a child.
“Defining an intersex from a child’s perspective while taking care of many aspects and not just the physical notion of being intersex is the best practice because in future they don’t find themselves in the state of gender confusion between males and females like the current situation,” stated Wakonyo.
This provision essentially protects intersex persons from being deprived of their constitutional rights of gender recognition under the country’s Bill of Rights.
Veronica Mwangi, the deputy director at Kenya’s National Commission on Human Rights, that helped secure the law’s implementation, said it addresses issues for which the intersex community has been fighting for years.
“It is very progressive and we are glad about the gains because it provides for the existence of the intersex which all state actors have to accept. Full implementation is what we now need to focus on,” she said.
The law took effect roughly five years after Kenya became the first African nation and the second country in the world after Australia to count intersex people in a Census. The 2019 survey showed 1,524 Kenyans were intersex.
Intersex rights groups had initially petitioned the courts for a total ban of surgeries on intersex children unless they were a medical emergency.
Wakonyo backs the provision for a doctor’s approval on grounds that the surgeries will only be done “in the best interest of the intersex child, informed consent of the parents and the participation of the child depending on the age.” Wakonyo and other activists say the relaxation of the requirements for adopting intersex children not only seeks to end the problem of neglect and abandonment but also the stigma that has left some to die by suicide.
The law safeguards adoptive parents’ rights and parental responsibility and intersex children from child labor, online expuse and other forms of exploitation.
“Intersex children who are just like other children will no longer be killed at birth because of their gender ambiguity,” said Wakonyo.
Despite the law’s huge benefits for the intersex community, Wakonyo notes it is a “very significant foundation” for the group because gender-specific accommodations in social gatherings and facilities remain needed.
Another historic win for intersex Kenyans this year was the Kenyan National Commission on Human Rights’ decision to hire an intersex commissioner.
“Dr. Dennis Wamalwa applied as an intersex (person), interviewed as an intersex (person), and the shortlist comprised male, female, and ‘I’ gender for intersex. He emerged (at the) top and his intersex friends and associates came to witness his swearing,” stated Wakonyo, who also served as a Kenyan National Commission on Human Rights commissioner.
Africa
Burundi’s president reiterates LGBTQ people should be stoned in a stadium
Évariste Ndayishimiye first made comment last December
Burundian President Évariste Ndayishimiye on March 8 reiterated his call for LGBTQ people to be stoned in a stadium.
Ndayishimiye made the remark during the commemoration of the International Women’s Day in Gitega, the country’s political capital. He first called for the public stoning of LGBTQ people last December during a public event.
LGBTQ activists sharply criticized the comments and some international diplomats even threatened to cut economic ties with Burundi. Ndayishimiye, however, seems unmoved by this pushback and maintained that if it meant if his nation would cut economic ties with the developed countries on the basis of his anti-LGBTQ stance then so be it, reaffirming that nothing will change his stance.
Jésus Dior Kant, a gay man and LGBTQ activist from Burundi, said the president’s remarks are tantamount to publicly calling for the lynching of gay people.
“This violent and anti-LGBT+ rhetoric endangers the lives of many individuals in Burundi and stains the nation’s commitment to human rights,” said Kant. “Such discourse not only incites homophobia and violence but also violates international human rights laws and norms that protect individuals regardless of their sexual orientation or gender identity.”
Kant also said what Ndayishimiye said now poses a real and immediate threat for LGBTQ people in the country.
“The impact of this statement is not merely rhetorical, it poses a real and immediate threat to the safety and well-being of the LGBT+ community in Burundi,” said Kant. “It encourages hate crimes, promotes discrimination and undermines progress made towards equality and justice. This is not just a problem for the LGBT+ community but a stain on the moral fabric of our global society, reflecting on us all.”
Kant called for Ndayishimiye to immediately withdraw his remarks and commit to protecting the rights of LGBTQ people in the country.
“Your call to stone gay individuals constitutes a blatant violation of human rights and an incitement to violence and discrimination,” said Kant. “We implore you to take the necessary measures to withdraw your statement advocating violence against the LGBT+ community, commit to protecting LGBT+ individuals in Burundi by enforcing laws that guarantee rights and well-being and respecting international human rights conventions, ensuring that Burundi is a nation that respects and values every human life.”
Clémentine de Montjoye, a researcher at Human Rights Watch’s Africa Division, said the anti-LGBTQ crackdown in Burundi could become worse, including continued political repression and restrictions on freedom of expression to maintain the governing party’s control.
“This type of fearmongering is not new in Burundi, where sexual relations between people of the same sex have been illegal since former President Pierre Nkurunziza signed a new criminal code into law in 2009,” noted de Montjove. “The law was a fierce blow to Burundi’s LGBT people, who had begun to come out and organize, albeit in small numbers, to demand their rights be respected.”
De Montjove further noted the National Assembly’s human rights commission added the anti-homosexuality provision in the 2009 criminal code at the last minute, apparently under pressure from Nkurunziza, who made statements on television that described homosexuality as a curse.
“Ndayishimiye, who presents himself as a progressive, rights-respecting leader, should be working to reverse this trend rather than stoking more fear and hatred,” said de Montjoye.
Africa
Ugandan appeals court upholds ruling that blocked LGBTQ group from registering
Decision ‘doesn’t faze us’
A Ugandan appeals court on Tuesday upheld a ruling that prevented an LGBTQ rights group from legally registering in the country.
The Uganda Registration Services Bureau in 2012 refused to legally recognize Sexual Minorities Uganda. The Uganda High Court upheld the decision in 2018, and SMUG appealed it to the country’s Registrar Court of Appeal.
“The LGBTQ community views this ruling as a missed opportunity to address the suppression of their freedom of association, instead focusing on perceived societal norms,” said SMUG in a press release. “It underscores a recurring trend in Ugandan courts, wherein rights of LGBTQ persons are marginalized, further widening the gap between legal protections and lived realities and experiences.”
Katie Hultquist of Outright International in a post to her X account expressed her personal support for SMUG Executive Director Frank Mugisha, his organization and other activists in the country. Mugisha said SMUG is “fully committed to elevating this challenge to the next level.”
“After thorough debriefing, we will communicate our next strategic steps,” said Mugisha. “This ruling doesn’t faze us.”
The appeals court issued its ruling less than a year after President Yoweri Museveni signed the country’s Anti-Homosexuality Act, which contains a death penalty provision for “aggravated homosexuality.”
The Constitutional Court in December heard arguments in a lawsuit that challenges the law. It is not clear when a ruling will be issued.
Africa
Prominent Angolan activist found dead in his home
Authorities say Carlos Fernandes showed signs he was strangled
Authorities in Angola on Feb. 26 found a prominent activist dead in his home.
Associação Íris Angola in a Facebook post wrote Carlos Fernandes, the group’s executive director, “was found lifeless in his residence” in Luanda, the country’s capital. Angolan media reports indicate authorities continue to investigate his death, but they suspect he was strangled.
His funeral took place on March 1. Activists throughout the country have organized candlelight vigils and other events to honor Fernandes.
“His departure leaves a huge void in our community and a deep mourning in our hearts,” said Associação Íris Angola.
Angolan lawmakers in 2020 decriminalized consensual same-sex sexual relations and banned violence and discrimination based on sexual orientation in the former Portuguese colony. Fernandes was among the activists who championed these advances.
The State Department’s 2022 human rights report notes violence and discrimination based on sexual orientation and gender identity remains commonplace in Angola. Angolan media reports indicate Fernandes is the second LGBTQ person found dead with signs of strangulation in recent weeks.
“Carlos Fernandes led the first LGBTQI+ group in Angola, and tirelessly advocated for human rights and ending the threat of HIV/AIDS,” said U.S. Agency for International Development Samantha Power in a March 6 post to her X account.
U.S. Ambassador to Angola and São Tomé and Príncipe Tulinabo Mushingi in a statement noted his embassy “was proud to partner with Mr. Fernandes over the past decade.”
“We are grateful for his important contributions to our programs supporting human rights, fighting against stigma and discrimination, expanding access to health and education resources for LGBTQI+ communities, combatting human trafficking and more,” said Mushingi. “In particular, his contributions to our PEPFAR (President’s Emergency Plan for AIDS Relief) program expanded protection and treatment for HIV/AIDS to previously unreached communities.”
PEPFAR echoed these sentiments, noting Fernandes’ “contributions expanded protection and treatment for HIV/AIDS to previously unreached communities.”
“Carlos Fernandes is remembered as a resolute, strong, welcoming person,” said Mushingi. “As a true pioneer in the fight against discrimination, he created a family among the LGBTQI+ community in Angola, and his legacy as an activist will be carried on by generations of LGBTQI+ Angolans.”
“We trust that the Angolan authorities will conduct a thorough investigation to ensure that any parties responsible are held accountable,” he added.
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