Muasya Notepad

One Nairobi lawyer John Chigiti has a unique case in his hands. His client Richard Mwanzia Muasya is a confirmed hermaphrodite. He is also a convicted criminal incarcerated at Kamiti Maximum Prison for robbery with violence. Muasya, through his lawyer is asking to be set free because the law is discriminatory against him. According to him, being locked up in an exclusively male prison whereas biologically he’s not totally a man amounts to human and constitutional rights abuse. He’s suffering degrading exposure to male convicts and prison warders. On November 6 last year Justice Roselyn Wendo ordered that he be accorded separate accommodation in Kamiti Prison but that has not been done so far. He is asking to be set free unconditionally.

But isolating an intersexual in our correctional facilities or anywhere else for that matter is just the beginning. In prisons there is the issue of other shared amenities like washrooms, dining area, recreational facilities and indeed the whole compound as a whole. If isolation will work in Muasya’s case at all, it would mean making physical changes to the buildings or putting up a separate prison all together. Quite a long shot considering that hermaphrodites are few and how many of them end up in prisons?

Cases like Muasya’s are rare but not entirely unheard of. In 2004 for example, intersexual Jonothon Featherstone managed to avoid a prison sentence in Jamaica because the Jamaican penal code had no provisions for those bearing both male and female genitalia. That was even after he admitted trying to smuggle drugs out of Jamaica.

One cannot ignore the tribulations Muasya has probably been through. For one the whole intersexual thing must be heavy on his psyche. I imagine he grew up grappling with excruciating social stigma and psychological effects of his mixed gender – all in an unforgiving culture. Secondly sexual abuse in our penal institutions is no secret. If he has not already been put through some of that, it’s just a question of when and not if and he must be spending all his waking hours fretting about it.

Surprisingly, hermaphrodites are not as rare as one may think. There are quite a number around the world and in some countries there are support groups just for them. In other countries, some incidences are surgically corrected when the child is still young. But this medical intervention on hermaphrodite infants is meeting with more and more resistance as people with the condition come forth with claims that these surgeries immerse subjects into worse psychological, medical, and sexual damage. They’re encouraging parents to let their children develop into themselves and enjoy the gift of being unique.

So should Muasya be set free?
Should he be jailed in isolation?

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