The recent ruling by the Supreme Court of Kenya on the registration of the National Gay and Lesbian Human Rights Commission (NGLHRC) has rattled many feathers. Many Kenyans have come out of the woodwork to condemn the ruling as contrary to the Constitution and the moral fabric of the society.
Among these Kenyans are ordinary citizens, religious leaders and even politicians. One of these politicians has been Homabay Town MP, George Kaluma who has been vocal on social media and even threatening to sponsor a law in Parliament to ban LGBTQ in Kenya.
Nevertheless, I applaud the Supreme Court (and before that, the High Court and the Court of Appeal) for being steadfast in promoting the rights of every person in Kenya, including minority groups. The ruling affirms that no Kenyan is a lesser being before the law and that the progressive Constitution promulgated in 2010 promotes and protects the rights of every Kenyan, whether big or small.
The backlash against the Supreme Court and its judges, especially those who affirmed the right of NGLHRC to be registered, is unwarranted. They performed their constitutional mandate diligently and prudently. Hence, they deserve all the praise.
But of concern is the hateful and spiteful comments in social media directed against the LGBTQ (Lesbian, Gay, Bisexual, Transgender, and Queer) groups. There has been an increase in LGBTQ-phobia, especially homophobia, after the Supreme Court ruling. This endangers the life of the LGBTQ who already face prejudice and discrimination in society.
On top of that, there has been increasing ignorance and misinformation on the status of LGBTQ in Kenya, to the extent that many claim the Supreme Court contradicted itself by ‘legalising an illegality’. On the contrary, homosexuality is not illegal in Kenya.
Those claiming that homosexuality is illegal cite Sections 162–165 of the Penal Code, which criminalise “unnatural offences” and “indecent practices between males”. These laws are colonial laws that have never been repealed. However, these laws do not in any way, shape or form criminalise homosexuality in the country.
What these laws in the Penal Code do is criminalize certain sexual acts, regardless of sexual orientation. However, the criminalisation mostly affects men who sleep with men (MSM), especially gay men, since they (MSM) are targeted disproportionately for harassment. Therefore, these laws, to an extent, affect homosexual behaviour but do not mean they criminalise homosexuality.
Neither does Article 45(2) of the Constitution criminalise homosexuality, or any other queer group. The article allows marriage between consenting adults of the opposite sex, which means it only makes gay marriage illegal.
Therefore, sexual identity and sexual orientation are not illegal in this country. The Bill of Rights is clear on this, especially in Articles 27 (4) and (5), which prohibit discrimination of any person on different grounds. Furthermore, Article 36 guarantees freedom of association for anyone.
The Supreme Court ruling is final. Thus, any attempts to derail the progressive rights enshrined in the Constitution will be futile. The Supreme Court affirmed human rights are universal, including for LGBTQ.
I blog at afrocave.com.
