The Right to Fair Administrative Action Among Transgender Kenyans: Challenges and Recommendations.
On the 26th of March 2013, I visited the Immigration Offices in Nyayo House to change my name and gender marker in my passport. In 2012, I had legally added the name Audrey to Mbugua Ithibu using a deed poll and gazette notice. On the 19th March 2013 I had applied for an addition of name in my national identity card at the Makadara District Registrar of Persons Offices, reason being I wanted a name that would fit my gender identity and expression. Gender Identity is ones self awareness as male or female and is not related to one’s anatomical sex – it is what mental health care providers refer to as an individual’s psychological sex. For those who have studied medical sciences, you will recall the three determinants of sex in humans are: chromosomes, genitals and core gender identity?
I had taken the time to write a letter articulating the two requests: change of my name and the removal of the M sex mark on my passport:
“The second request is unrelated to the first. I kindly request that you remove the M gender marker in my passport as it is a major impediment in my social and occupational functioning. This significantly compromises my security in airports, bank in addition to raising suspicion and embarrassment……. I simply need a document that is in line with my gender identity and gender presentation.”
I waxed on in the letter, knowing that I was sailing through unchartered waters but remembering a kikuyu proverb my grandmother uses when reminding me that we all have what it takes to accomplish our goals i.e. guoya muingi uturagia okia mucii (too much cowardice keeps poverty at home) I decided to give it a try.
For those not conversant with the transgender concept, I will put it in a nutshell: I had been born male 29 years ago and I started my medical transition to be of the female sex a couple of years ago. The process of changing my name and gender marker in my identity, travel and academic documents was fraught with challenges such as lack of understanding among public officers in charge of these processes. Some challenges were just to weird: my final surgical procedure lay in abeyance as the head of the medical institution insisted my parents and relatives had to give their consents. Then after nearly 4 years of requesting for the process the Medical Practitioners and Dentist Board (MPDB) blamed the medical legal lacunas of there being no policy guideline to handle Gender Identity Disorders (GID) cases. I have always had to contend with nasty and hurtful scenarios. My national identity card, passport and some academic certificates had the male sex marker and in numerous instances I had been reprimanded or questioned about these documents. For example, am a signatory to a certain bank account and it used to be a nightmare going to that bank for any transaction. “Madam, kindly assist me with your ID or passport please?” And the cashier would look at me twice and then the third time and ask me whose ID/Passport that was. And, then the usual process of them verifying and asking me questions about my genitals and sexual orientation (apparently people mistakenly think people are transgender i.e. undergo gender change- because of their sexual orientation!!!!). Three transgender sisters of mine and I have been asked “now that you are beautiful women, do you have boyfriends? In most cases, its done innocuously but transgender women know how offensive this question is – I will discuss the topic of hypersexualization of transgender women in another essay but notice that gender change and sexual orientation are unrelated.
I had to use the same papers to apply for jobs, scholarships, MPESA/AIRTEL Services etc. Not long ago I used to avoid certain scenarios to avoid embarrassments or confrontations. For example, my hate for international travel emanates from the fact that my travel insurance policies come with: …Dear Sir or Dear Mr. Mbugua we are glad to offer….. It’s a pain to have to look at those documents. I know I normally advise transgender people to develop a thick skin but there is a limit to how much one can take. At times you try to shake off the frustrations and the hurt but they don’t fall off easily and you feel tears welling in your eyes.
Armed with my psychiatrist medical report stating that I had been diagnosed with Gender Identity Disorders/Transsexualism in 2008 and was in the middle of my medical transition, I strode into the supervisors’ office majestically, confident as Hercules. A supervisor by the name Filly offered me a seat and I went ahead to make my requests. She gazed at my papers so hard I thought they would turn into a ball of fire. She looked up at me and said the nature of the requests was “beyond her”. I requested to see the director of immigrations or somebody in a position to process my application. After thinking hard, she took me to a Senior Assistant Director of Immigration Services. We sat in front of the Ass. Director of Immigrations barely able to see him behind the heap of files and papers on his desk. He scrutinized my documents meticulously and agreed to insert the name Audrey but rejected my request to have the M gender marker removed from passport. His reason was that the medical report indicated that I was not yet through with my medical transition. I requested him to reconsider my case stating that gender markers describe the functional gender of a person and not genitals. I added that the M in that passport was problematic in my various spheres of life. He said that he sympathized with situations of people like me but his arms were tired. I requested him to give me some little rope: remove the M marker but then don’t insert the F. He enlightened me about the process of production of passports and that the machine would not print it if there was missing data. I gave in half heartedly and the application was approved. I was told to pick my new passport on the 3rd of April 2013. I went home with a huge cloud of melancholy over my head wondering why we make rules without thinking outside the box. I mean why do we need a letter in our documents to explain a physical characteristic that is hidden by layers of clothes but ignore one’s gender identity/presentation or expression which are public?
On the 5th of April 2013, I arrived at counter 13 at a break neck speed flashing my receipt like a lottery winner. The immigration officer told me my passport was not ready and I could check for it on the 10th of April 2013. On the 10th of April 2013 Filly told me my passport was not ready; there was a problem but she would follow it up. She gave me her mobile number and requested me to call her the following day at around 1100hrs. On the 11th of April 2013 at 1100hrs I gave her a call and unfortunately it went unanswered. After an hour, I tried her phone again but it still went answered – maybe she was in a meeting. At around 1430hrs, I tried once more and since it went unanswered, I wrote her an SMS requesting her for the status of my application. I received no reply. I decided to fix the problem.
At 1600hrs, I went to her and requested to know why my passport had not been processed. She requested me to grant her more time to follow up the matter since my application was approved by no one knew why my passport had not been processed or the whereabouts of my file. Hard as it was to swallow that piece of information, I did and calmly told her to sit down and put what she had just told me in writing. After all, the provisions of Section 47 of the Constitution 2010 demands that I receive formal and written communication whenever any of my right or fundamental freedoms were to be curtailed. Filly told me she did not have the authority to do that and there was nothing she could do. After requesting her for a referral to her supervisor, I was directed to a Mr. Wesonga Wawire. After narrating my ordeal, he told me there was nothing he could do since my file could not be traced. I asked me if it was a common occurrence for files to go missing and he said that mine had been taken back to “security” and it could not be traced. I requested for an audience with his supervisor and he directed me to “Doreen” who was not in. I requested for an audience with Doreen’s supervisor but a Ms. Miriti told me Wesonga Wawire was the head of that department. Ms. Miriti asked me for my application’s tracking number promising me to find the file. She told me to take her mobile number and follow it up with her on the 12th of April 2013. I gave her a firm no. I told her I would not leave that building until I got constructive answers. I went to the second floor for assistance from the Ass. Director of Immigration. Unfortunately he was out for a meeting and I had to wait.
At around 1720 hrs, he came in and I explained to him what had happened. I could tell he was a bit pissed asking me why Filly had not informed him that the application had stalled. I didn’t know what to tell me; I did not want to report the cat and mouse games she and her colleagues were playing because I thought it was not the right moment to bring in new complications. By this time, I looked haggard and my posture was mediocre. I asked the Ass. Director how transgender people were expected to compete at an equal footing in social economic spheres when simple applications could not be processed without the interventions of directors and assistant directors. It was at this moment that things went from bad to worse.
The assistant director told me that the society was not used to these issues and anything that appeared abnormal was met with skepticism and denial. He narrated a similar case of an Asian transsexual/transgender woman who had successfully changed her documents after her gender change surgery – which she got in
On the 12th of April 2013, 1704hrs I gave him a call and he informed me that the problem was that the production unit was ambivalent on which gender marker to insert since an M was out of question (for them) but my reference documents had an M. They had shelved it waiting for clarifications!!!! On the 15th of April 2013, I went home with my new passport firmly clenched in my fist. That little win made me feel as if I had the world in the palm of my hands.
However, the joy was short lived. A transgender sister of mine is going through a similar event and talking to her made me feel that I had underperformed as a person in charge of overseeing policy reforms to emancipate the transgender community in
My objective of using real life experiences and names of the people involved is not to name, shame and draw a list of iniquities the State has committed. But, to use real life situations to raise the consciousness of gross insensitivity and blind spots that bedevil the processes of accessing fair administrative action in our public sector. As much as we appreciate that there are experiences that we humans come across and which knock the wind out of us, we need to handle matters objectively and embrace common sense fusion of secular humanism and Constitutionalism. We have met public officers who have made positive impact in our lives, going an extra mile than required. They have asked questions, made genuine mistakes which we have then proceeded to rectify. They have become experts in this field. Such is the constructive dialogue and engagements we strife to have. The political will to ensure all Kenyans benefit from Article 47 is a tall order. But, it starts with me and you.
The provisions of Section 47 are as follows:
47. (1) Every person has the right to administrative action that is
expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is
likely to be adversely affected by administrative action, the person has
the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights
in clause (1) and that legislation shall—
(a) provide for the review of administrative action by a court or,
if appropriate, an independent and impartial tribunal; and
(b) promote efficient administration.
I don’t work for the government and I don’t know whether during induction processes civil servants are taught these basic tenets. But, the lack of awareness of this Section 47 cannot disentangle the cat’s cradle of contradictions that stymie delivery of services to transgender people in
Dr. Samson Wanjala started to lecture me, “ young lady some the cases we have been dealing with are way too difficult than you think. For example, there is this man called Audrey Mbugua who wants a gender change surgery and he doesn’t know the consequences of that surgery. Additionally, we will never allow such people to force us to perform these surgeries.” The law is also against these surgeries. He added. So, how is Audrey and people like her forcing doctors to perform these surgeries and which law is against these surgeries? I enquired, careful not to betray my cover with the pain I felt. “Am not an expert in that docket but we will deal with the likes of Audrey decisively” Dr. Wanjala continued with his chest thumping.
“Dr. Wanjala, I am the Audrey Mbugua you are referring to and it is good to know my complaints are in safe hands” I blurted out, his fellow doctors looking at him coldly. His lower jaw fell on his plate. Wha-wha-t- what? He stammered. Okay, Audrey what I meant was that…..he changed the chorus but the truth had already come out and it was too late for him to retract his words. We went on to resolve the disrespect amicably later on but it is hard to trust people like Dr. Wanjala. However, I have faith that people have the capacity to change for better. The animus exhibited by Dr. Wanjala was probably shared by some of his colleagues – which was evident after he and his CEO Mr. Yumbya introduced me to the rest of the Board. It is as if some expected me to be ashamed of myself because of my gender status – when they saw I was not the kind that venerates people because of a title they retreated in their cocoons.
Early last year, I approached the Commission on Administrative Justice (CAJ), what some call the ombudsman, requesting them to intervene for me to access my gender reassignment surgery – complaint number CAJ/M.HEA/012/117/2012. The CAJ developed cold feet and after tirelessly running after one of their legal officer – Ruth Emanikor I was called for a meeting with their assistant chairperson Dr. Regina Mwatha. On the 20th of June 2012, at around 1030hrs I and Ms. Emanikor walked into Comm. Dr. Mwatha’s office. Dr. Mwatha assured me of CAJ’s unwavering support for the downtrodden like me. We ended the meeting with her stating that “Hata Mnyonge an Haki” – translated to “even the weak have rights”. A follow up call I made with Ruth Emanikor On September 4, 2012 sent me and a trans sister of mine into stitches, Ms. Emanikor told me that she and Dr Mwatha had decided not to follow up on my case since I was a transsexual and not a hermaphrodite/intersexual – “my case did not fall within their mandate”. This kind of statement will undoubtedly tell wayward people that its open season and the weak are not entitled to rights – lets throw them under a speeding bus.
The third case involved the Kenya National Examination Council (KNEC). On the 3rd of August 2012, I approached the KNEC to change my names in my secondary school certificate i.e. KCSE. I submitted my applications (deed poll, gazette notice, copy of the certificate) to an officer called Catherine Maina who after scrutinizing the applications told me that the KNEC would not change my name in academic certificates. Why? I enquired. She told me that it was to curb cases of forgeries of certificates!!!!!! I wanted to ask her how she could manage to be so obtuse but decided not to stir the hornets nest – I would be civil from the beginning to the end. I told her to receive the documents and reject the request officially. She told me she would consult with their legal officer and revert after two weeks. On the 11th of August, I received an email from her asserting that they would not change the name on the certificate and I should attach my gazette notice and deed poll in my future job applications.
On the 28th of February 2013, I wrote to the CEO of KNEC copying her in the correspondence:
“Despite me having my gazette notice and deed poll, Catherine Maina doubted the legitimacy of that certificate and whether I was the rightful owner of that certificate. How is the gazette notice going to alleviate doubts in a potential employer when she - working with the agency that issued the certificate – was casting aspersions on the legitimacy of the certificate?”
I even went ahead to request for whatever policy or law KNEC had to legitimize their decision not to change the name on the certificate:
“Additionally, I hereby make a gentle request for information relating to how the KNEC/Catherine Maina arrived at the decision that the KNEC would not accept my application for change of name. Additionally, I would appreciate if you sent me copies of any law, policy, rules and regulations that outlaw changes of names in academic certificates. Article 35(1) of the Constitution 2010 grants me the right to access this information.”
The KNEC quickly wrote to me that they would get back to me after two weeks. I conjecture Catherine had already thrown my papers into the dustbin and had assumed I would not follow up the matter because she hurriedly wrote an email to me requesting for copies of the documents I presented to her in August 2012. – “you could email me soft copies” she had pleaded. It is now past five weeks and I have not heard from KNEC.
The transgender community – and already most know this – should realize that the right to access services in a timely fashion is not a gift from the State. Rights are entitlements we derive from the mere fact that we are humans. Additionally, we need to be strategic when we apply for services or when dealing with the challenges that come along with our applications – expect the unexpected. Some public officers will serve you as dictated by the Constitution 2010, some will pour opprobrium on you and others will tell you stories of women kissing other women (WKW) or men kissing other men (MKM). It is important to note that public officers are human beings who happen to work for the State and face limitations in delivery of services due to limited infrastructure – which could even be lacunas in our laws or simply lack of awareness about the transgender concept. Even those working in the NGOs/Public Benefit Organizations (PBOs) sector can appreciate the fact that they have their unique challenges and it is reasonable to accept the harsh realities of our times. I have met well seasoned gender and law experts and they have never heard of the transgender concept. But, we should not allow the State to act in an obtuse manner.
Some Public and State officers should stop making assumptions about transgender people. The transgender community does not like the habit of people bringing in talks about “women kissing other women” and “men kissing other men” when we request for services. Keep discussions germane to transgender matters or themes. We simply don’t understand what relevance some issues have in our cases. We are heterosexual/straight transsexual/transgender people and we should not be assumed to belong in a certain community because of we are undergoing gender change. I am not a lesbian woman and neither am I a gay man. However, I commend some public officers who have made positive changes in our lives. “Audrey, can you get that PhD as soon as possible. It will open your world into another domain of academia” one honorable magistrate told me several months ago. “Become an expert in Transsexualism and the Law and the world will be knocking your door for advice in legal and policy reforms” she added. “Audrey, you would make a good lecturer” the director of Kenyatta National Hospital (KNH) –Mr. Richard Lesiyampe told me on the 3rd of November 2011. Others have told my transgender sisters: “be the best that you can. Never allow anything or anyone to come between you and your dreams.” I can attest some of us have made positive changes in our lives as a result of these inspirational moments. But, it turns into a tragedy when people start telling transgender women of tales of “women kissing other women” and “men kissing other men”. We ought to be assertive and make our opinion heard. We respect the rights of everyone but we don’t appreciate people turning transgender dialogues or issues into gay or lesbian dialogues or issues. Of what relevance will such digression yield to us?
The State should espouse the spirit of Article 10 of the Constitution 2010 i.e. National Values and Principles of Governance. Article 10 binds all State and Public Officers and all persons whenever they make or implement public policy decisions. The national values and principles of governance include participation of the people, rule of law, human dignity, social justice, inclusiveness, human rights, protection of the marginalized, transparency, participation of the people and sustainable development. When the Medical Practitioners and Dentist Board included Gender Reassignment in a list of “type of conduct that might raise disciplinary action among medical practitioners” they refused to consult with us. When I raised that concern with them on the 28th of November 2012, they said that “they had involved human rights people.” And, although they assuaged our displeasure by putting it with a human right rights perspective i.e.
“Gender reassignment is not permitted on demand. The specialist
attending to the patient with gender problems shall constitute a team
of specialist whose decision would be based on anatomical and special
needs of the patients but whose decision must be based on the right to
health and other fundamental rights in the constitution” Page 24 of the 6th Edition of the Code of Professional Conduct and Discipline by the Medical Practitioners and Dentist Board
I still feel aggrieved by the fact that they rushed to put on a cock on an empty bottle.
Am preparing correspondence to start a dialogue with the
I am aware the transgender community in