KNCHR Report on Decriminalizing gays and lesbians causes a hullabaloo about nothing.
The recently released report by The Kenya National Commission on Human Rights has caused a flurry of rather emotional reactions from all sectors of society. I suppose the issues underlying the presence and activities of gays and lesbians in Kenya are what are truly at the center of this debate. There seems no end to the myriad speculations and unfortunate judgment on the lifestyle and sexual preferences of homosexual people. Be that as it may, the crux of the matter is not so much the gay lifestyle or choices, but the provisions for fundamental rights as enshrined in the Kenya Constitution.
The bone of contention that should be considered in this discussion are the rights entailed in Article 27 (4) of the constitution which states, “The State shall not discriminate directly or indirectly any person on any ground including race, sex, pregnancy, marital status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.”
These fundamental rights apply to all citizens in Kenya. The supremacy of the constitution is such that, if a law found in the penal code contravenes these rights, it is automatically nullified by the constitution. The question of decriminalizing gays and lesbians thus ceases to be an issue, as the constitution is clear as to what rights they currently enjoy. The premise of the KNCHR report thus begs the question: Are the fundamental rights and freedoms of gay and lesbian Kenyans being infringed upon by the State as a policy or law? No.
One as such, is left wondering what the noise is all about. Let me be clear, as a matter of legislation, the government does not, and cannot “criminalize” being gay as it is your fundamental right. The government cannot outlaw your sexual orientation or what you do in your bedroom. To further ensure that you enjoy your fundamental rights, Article 27 (5) goes on to say, “A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).” So once again, gays and lesbians have the constitution protecting them from discrimination on any ground by any person.
So why is there such a noise about the KNCHR report? I can say, it is primarily because people have to, for the first time in the history of Kenya, face two facts. Firstly, that their assumptions about their society vis a vis sexuality are prejudices that are not supported by law, and two, that gays and lesbians do enjoy the same rights as them.
Being homosexual in Kenya puts that individual in a minority, but even as minorities they still enjoy the same rights, responsibilities and privileges as stipulated in the constitution. Even though the Kenya constitution clearly states that marriage is between consenting adults of the opposite sex, it does not prohibit people from living with their partners, or making a will to protect, and endow their partners with their property when they die. Homosexuals are not prohibited from working in any sector; they can acquire land and property, invest, be educated, and interact with the society freely. In the case of any person attacking them physically, emotionally or verbally they can report the said attack and seek legal redress, they can rely on the government to protect them from any kind of violence, and they can seek medical attention in any hospital. Should they have children, their kids can enjoy the same rights and privileges that other kids enjoy. As youth, or if they have disabilities they even enjoy further rights by provision of affirmative action programmes in the constitution.
So that brings me to the second area of contention which is the reliance on article 56 of the constitution which seeks to correct imbalances by putting into place affirmative action programmes. In as much as homosexuals are a sexual minority, I don’t see how their rights have been infringed upon so as to require affirmative action programmes, as compared to another minority group such as the Ogiek community, or the Njemps.
Barrack Obama’s recent endorsement of same-sex marriage notwithstanding; in Kenya the matter of same-sex marriages is yet to even be raised by the gay community as a petition to amend laws on the family to include same-sex marriages. So what is everybody arguing about? It’s all a hullabaloo about nothing. You can’t deny homosexuals their rights, because they enjoy the same rights you do!
Homosexuality may be described as “sinful” by your religion or culture but “sin” is not defined in the law. Certainly, because by law one cannot discriminate against a fellow Kenyan on religious grounds or using religious reasons, the question of “sin” should be applied by believers primarily to their own conscience and actions, and not the actions of others.