Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.
I’ve been pilloried for standing up for gays and lesbians. Tough luck – that won’t stop me. Nor will it drive gay rights activists underground. Those days are over – gone for good. That’s why I was ecstatic when the Kenya National Commission on Human Rights, the country’s official human rights watchdog, asked the government to decriminalise homosexuality and sex work.
I never thought a credible Kenyan institution would ever do what the KNCHR has done. It’s perhaps the most important social statement to come out of the KNCHR. It’s an acceptance that gays and lesbians are part of Kenyan society. It means “straights” needn’t be afraid.
Bill of rights
I’ve said before that the new Constitution doesn’t criminalise – or forbid – same-sex relationships. Let’s set the record “straight,” so to speak. The Bill of Rights in the new Constitution is a superior species of law. Nothing can contradict, or override, the rights therein. What’s my point? Nowhere in the Bill of Rights are the rights of homosexuals proscribed, or limited.
Article 27, which is the Equal Protection of the Constitution, provides “every person” is “equal before the law” and has the “right to equal protection” before the law. That’s an unequivocal, categorical, and blanket protection against discrimination. The article doesn’t exclude homosexuals from the ambit of constitutional protection. Further, Article 27 (4) prohibits discrimination on the grounds of “sex”.
The prohibition of discrimination on the grounds of sex has been understood to include sexual orientation. The Constitution eliminates all wiggle room by prohibiting both direct and indirect discrimination.
By providing that “every adult has the right to marry a person of the opposite sex,” our Constitution doesn’t prohibit same-sex marriages. Nowhere does it say that same-sex marriages are proscribed. One needs to look at Article 20 (3) (b) of the Bill of Rights to appreciate how a court may rule on same-sex relationships.
That article clearly requires courts to “adopt the legal interpretation that most favours the enforcement of a right or fundamental freedom.” The point is that where a right is contested, the courts must take the most liberal interpretation of the law to avoid denying the right. Put differently, the Bill of Rights is to be interpreted to “expand” – not “constrict” – liberty and freedom.
The legal philosophy of the new Constitution is “emancipatory”. It’s not a repressive document that takes away rights, or imagines a closed or rigid category of rights. On the contrary, the Constitution imagines the vistas of human freedom and liberty to be boundless. It’s a living, not a dead document, one that is frozen in time. That’s why few lawyers would argue that the Constitution criminalises, or prohibits, same-sex relationships or homosexual marriages.
This brings me to sections of the Penal Code which I consider to be unconstitutional, and which must either be repealed, or scrapped by the courts. I’m talking of Sections 162-165 of the Penal Code wherein homophobia resides. The benighted language of the Penal Code refers to homosexual sex as “carnal knowledge against the order of nature.”
My only response is that it doesn’t get any more Neanderthal than that. Most gay people, like most straight people, are just “hard-wired” that way. That’s why either Attorney General Githu Muigai or the courts must move to remove as unconstitutional Sections 162-165 from our law books.
I am disappointed by the silence of Kenya’s most senior politicians and political outfits on the issue of gay rights. The leading political leaders and parties must embrace the KNCHR’s call to legalise homosexuality and sex work. I’d like to see President Mwai Kibaki and PNU and Prime Minister Raila Odinga and ODM openly embrace the KNCHR’s forward-looking and constitutionally sound position.
First, it’s the right thing to do. Second, it will make sex work safe and taxable. It will grant our homosexual compatriots full citizenship. Great societies are measured by their compassion towards the vulnerable. Let’s protect the weak and marginalised. That’s what the Constitution requires.
I know many prominent Kenyan families with gay sons and daughters. What will these families do? Disown their children? Report them to the Police for prosecution? Of course not. They have no choice but to embrace and love their children. I say to them – don’t be ashamed to admit to the public that your son or daughter is gay. You can remove the stigma by speaking out openly for gay rights.
Where does this leave us? Before you “pick up a pen” and hurl insults at me, consider this question – what do you really know about homosexuality? If you are bigoted, ask yourself why. Is your bigotry and homophobia based on the Bible, the Quran, or culture? If your bigotry is religious, ask yourself why religion should be the basis of hate. If it is cultural, ask yourself why “culture” is such a refuge for unintelligent hatred. The world is changing. We must change with it. Kenya shouldn’t be the last refuge of homophobes.