By George Jim Githinji
A few weeks ago a three judge bench of the High Court compelled the NGO regulatory authority to register a lobby for the Lesbian, Gay, Bisexual, Transgender and Intersex persons in the country. The regulatory authority had refused to register the lobby group on the basis that the orientation, identity and behaviour of the LGBTIs goes against cultural and religious practices (and beliefs) in the country.
The High Court judges were however quick to rebuff the defence put up by the regulatory authority. Three major issues from my point of view stood out from the ruling. First, the High Court recognized the universal and inherent dignity of every person and the utmost need to have that dignity respected. Second, it upheld the indispensable freedom of association for every individual in the country so long as it was within the confines of the Supreme Law. Third, it upheld the inalienable Constitutional stipulation of non-discrimination of any person on any grounds, including sexual orientation in this case.
Nevertheless, the media, the religious and some sections of the political fraternity have misinterpreted the ruling by the High Court and blown it out of proportion. Their misinterpretation has seen the issue shift from freedom of persons to associate to the issue of legalizing homosexuality in the country. The high court determination was not on whether homosexuality is legal in Kenya or not, but on whether it is legal for any persons to be denied the freedom to associate based on their orientation, identity or behaviour.
This landmark ruling resulted in the Judiciary being insulted and undermined even by some politicians who are supposed to be primarily the custodians of the law. Up to the umpteenth time, the Judiciary in Kenya and in other democracies of the world has reiterated that it is the supreme custodian of the law, and its primary role is to ensure that the spirit of the law and the constitution is not violated but upheld by all. This it does through means such as mediation, arbitration and legal interpretation.
Even if we were to talk about legalizing homosexuality in Kenya, it would be a very intricate task to achieve. Article 45 of the Kenyan Constitution which deals with family defines marriage as an act of free consent based on adult persons of the opposite sex. The difficulty comes in that it would require a referendum under Article 255(1) (e) to amend the Bill of Rights, of which Article 45 is part of.
Having an eager appreciation for universal rights for minority groups, of which in my opinion the LGBTIs belong to, I find it very bizarre to confine the issue of marriage and sexual orientation to the will of the majority. It is my most upheld understanding that heterosexuality, homosexuality or any other sexual orientation or identity considered â€˜queerâ€™ or â€˜deviantâ€™ should only be regulated if it becomes a threat to the human social contract.
By being a threat to human social contract, I mean any sexual behaviour that endangers the lives of other people. These behaviours include early and forced child marriages, rape (including sodomy), paedophilia and defilement.
It is therefore a violation of the rights and freedom of the LGBTIs to fully appreciate, explore and have the benefit of or take pleasure in their sense of identity, if it all requires a referendum, the will of the majority, to achieve that. With a big percentage of Kenyans being against homosexuality (and others homophobic towards LGBTIs), the sense of legalizing or giving the LGBTIs a larger space to benefit from their inherent and achieved freedoms and rights remains a mere pipe dream in this country.
Many a times, the discussion of homosexuality in the African (and Kenyan) setup is based on the sexual behavioural aspect. That is, the act of engaging in sexual intercourse or sexual acts with persons of the same sex (which sometimes extends to the same gender). The mental frame of a man having sex with another man sends many a person irate and cursing with repugnance. Ironically, lesbians are more tolerated in some parts of the country (and the continent) whereas their male counterparts are loathed with passion.
But in the past year, I have learnt that to fully understand who the LGBTIs are, you need to go beyond the sexual behaviour and look into their sexual orientation (sexual attraction to people of the same sex) and their sexual identity (appreciation of a personâ€™s sexuality). This involves digging deeper into the feelings, personalities and attitudes of these people.
Looking beyond the optical illusion, you will understand that they are wonderful human beings deserving of love, passion and companionship, just like any heterosexual persons.
Lastly, it is essential to applaud the High Court for its decision in this case to uphold the essential tenets of the Constitution and the Bill of Rights beyond the religious and cultural perceptions of the society.