Motshidiemang v. Attorney General
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In a significant ruling for the transgender community in Kenya, the High Court of Kenya in Nairobi in an ex parte decision issued an order of mandamus compelling the Kenya National Examinations Council to change the name on and remove the existing gender designation from an academic certificate, as requested by a Kenyan trans-woman. Audrey Mbugua Ithibu brought the action after the Council refused to make the changes in their records citing, inter alia, its inability to authenticate awards by allowing former candidates to change their records, as well as its limited financial resources to implement a policy of name change on certificates. The Court reasoned that the governing law of the Council does not expressly prohibit name change on issued certificates, nor does it require gender to appear on awards. The Court also based its ruling on Articles 10 and 28 of Kenyan Constitution on respecting and promoting human dignity.
In 2008, Audrey was diagnosed with Gender Identity Disorder and depression. She later sought hormonal treatment. Thereafter, she changed her name from Andrew to Audrey and decided to change his national identity card, passport, and academic papers to reflect her changed gender from male to female. In 2010, she wrote a letter to the Kenya National Examinations Council, requesting to replace her Certificate of Secondary Education by changing her name and removing the existing male designation.
In 2013, the Council issued a response, indicating that its “regulations do not allow addition or deletion of a name after award of a certificate to a candidate,” and that name changer is only permitted during the registration for subsequent examinations. Moreover, in an affidavit by its Chief Executive and Secretary, the Council stated that the available medical records did not show that Audrey had completed her transition to female gender, and that her national identity card and passport still reflected her former name. The Council also cited concern over its inability to authenticate reissued certificates of former candidates and the financial hardship that may result in giving effect to a name change policy.
In 2013, Audrey then sought a court order compelling the Council to follow her requests. She argued that the refusal to change name and gender mark was “unreasonable and unjustified and unfair in the circumstances,” and was “in breach of the rules of natural justice.” [para. 4]
Judge Weldon Korir delivered an ex parte decision of the High of Court of Kenya in Nairobi.
The main question before the Court was whether the governing law of the Kenya National Examinations Council permitted Audrey, as a transgender individual, to change her name on her academic certificate and to remove the existing male designation.
Before proceeding with the issue, the Court briefly reflected on the country’s jurisprudence relevant to transgender community. In Richard Muasya v. Attorney General, Nairobi High Court, Petition No. 205 of 2007, the High Court addressed the question of whether Sections 70 and 80 of the Constitution must reflect intersex individuals as a third gender. It refused to introduce intersex as a third category of gender in addition to male and female upon giving deference to the legislature in interpreting the term sex. It also held that “intersex persons are adequately provided for within the Kenyan Constitution as per the ordinary and natural meaning of the term sex. Moreover, issues of sexuality are issues which cannot be divorced from the socio-cultural attitudes and norms of a particular society.” [p. 8]
The Court then assessed the arguments presented by the Council against reissuing a new academic certificate. It dismissed the Council’s concern over its inability to authenticate academic records and that implementing a name change policy would lead to commission of fraud. The Court was of the opinion that the existing governing rules allows the Council to “always verify the information when asked to do,” even after when a candidate’s name has been changed. [p. 9] Additionally, the Court found the Council’s limited financial resources argument without merits as Audrey had already expressed her willingness to pay a reasonable fee for the issuance of an amended certificate.
Furthermore, the Court held that the Audrey was correct in pointing out that the current governing rules of the Council do not expressly require the gender of candidates to appear on academic certificates or awards. Under Rule 9 of the Council on Kenya Certificate of Secondary Education Examinations, “[a] certificate awarded to a candidate shall show the name of the candidate, the candidate’s index number, the name of the school in the case of a school candidate, and all subjects taken by the candidate in the examination with the respective codes and the grades obtained in all the subjects taken.” [p. 10]
The Council contended that Audrey failed to substantiate her reasons as to why she be treated differently. In response, the Court stated that “[her] unique situation ought to be put into consideration when addressing [her] application. [Her] case cannot be compared to that of a married woman changing her maiden name to her husband’s name. In a layman’s language, [she] is a person with the body of a man and the mind of a woman.” In supporting its view towards compelling the Council to issue an amended certificate, the Court referred to the importance of respecting and promoting human dignity enshrined under Articles 10 and 28 of the national Constitution. It held that “[i]n Article 10 of our Constitution, human dignity is one of the national values and principles of governance which must be applied in interpreting the Constitution; enacting, applying or interpreting any law; or making or implementing public policy decisions.” [pp. 10-11]
Based on the foregoing analysis, the High Court of Kenya in Nairobi issued an order of mandamus, compelling the Kenya National Examinations Council to issue an amended certificate that would replace Audrey’s former name and remove the male designation.
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