Court orders KNEC to replace transgender Audrey Mbugua’s certificate recognising new name
By Caroline Rwenji
| October 7th 2014
NAIROBI, KENYA: In a landmark ruling, Audrey Mbugua, a transgender who stunned the country with her intentions of being recognised as a woman can now celebrate after the High Court ordered the Kenya National Examination Council (KNEC) to comply with her wishes.
Knec now has 45 days to replace Audrey's Kenya Certificate of secondary School Certificate (KCSE) from Andrew Mbugua Ithibu to Audrey Mbugua Ithibu.
High Court Judge Justice Weldon Korir ordered that the certificate be printed without a gender mark adding that Audrey meets any extra costs required.
He however noted that KNEC cannot be faulted for denying to amend her certificates as the issue was unheard of.
"I note that this is a novel issue and KNEC cannot be faulted for refusing to issue an amendment to the applicant," Justice Korir said.
He noted that the examinations body had not demonstrated to the court why the Audrey could not be issued with another certificate with the changes she desired.
On the other hand, the court heard that Audrey had provided enough basis as to why KNEC should be compelled to issue her with a fresh certificate.
"The court takes judicial notice of the fact that examinations in this country are not administered based on the gender of the candidate. Marks are also not awarded on gender," the court stated.
He noted that Knec on any other situation can withdraw a certificate for amendments where necessary.
"It therefore has legal baking to comply with the applicant's (Audrey) request. Where it fails to do so, then this court can issue an order to compel it to perform the duty.”
Audrey went to court challenging the examination's body failure to recognise her as a woman by failing to change her names in their records and on the certificate.
She said that their move to deny her with an amended certificate was unreasonable and unjustified adding that it was a breach of the rules of natural justice.
Audrey was born male and says that she was diagnosed with a gender identity disorder seven years after she completed high school in Kiambu High School where he scored a grade of A-.
The court heard, during submissions that he is still undergoing treatment for the medical condition.
KNEC however was opposed to issuing an ammended certificate citing that they only print one certificate per candidate.
KNEC's Chief Executive Paul Wasanga told the court that the exams body does not originate any information on candidates but rather compiles information on a candidate that has been provided in the various education centres.
KNEC was also cautious about issuing the certificate stating that it was not clear on whether the transition from male to female had been achieved or was even legal.
"The medical report does not indicate whether the medical treatment is meant to achieve and is deliberately vague and confusing," the court heard.
Audrey on her part argued that KNEC ought to accept her condition as the Higher Education Loans board (Helb) and the Ministry of Immigration had.
The two organisations, she had said, had accepted her condition and regarded her as a woman.
Justice Korir, while granting the orders noted that every human being is entitled to human dignity adding that this can be violated through humiliation, degradation or dehumanisation.
He further noted that the law does not require the gender mark on the certificate and the document can be regarded as complete without the mark.
"Removal of the gender mark will therefore not dilute the quality of the certificate," the judge stated.
Audrey made it known that she had encountered great difficulty in her quest to be recognised as a woman as most government offices had frustrated her attempts to get documentation to attest to her new gender.
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