1.0 unnoticed. Currently in some Kenyan schools, students suspected

1.0 Introduction

While not necessarily a
new concept in the African culture, homosexuality is considered a taboo topic
in Africa.1  The world has embraced this “new sexual
orientation” and rarely today can one watch an American television show that
fails to display a homosexual couple or hints at their lifestyle. In most of
Africa however, and in Kenya specifically, such displays on television are
often censored. The writers and cast of Nairobi Half Life for example received
a lot of backlash for the inclusion of a gay scene (albeit not explicit) in the
much celebrated Kenyan film.2

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

The Penal Code
criminalizes homosexual acts.3
This legal disposition coupled with the already negative preconceived attitude
of most Kenyans towards homosexuals is arguably the basis of the negative
treatment sexual minorities in Kenya have become accustomed to. Similarly, the
deliberate exclusion of sexual orientation as a ground for non-discrimination
in the Kenyan Constitution does not go unnoticed.

Currently in some
Kenyan schools, students suspected of homosexuality are expelled.4
Cases of landlords evicting tenants because they are actually or perceived to
be homosexuals are on the rise.5
The court battle between the Eric Gitari and the Non-Governmental Organizations
and Co-ordinations Board over the refusal to register an NGO on the basis that
the people whose rights the NGO sought to protect are gays and lesbians6
depicts the attitude of state bodies towards sexual minorities. What is
apparent from this introduction is that sexual minorities are discriminated against
on all levels in Kenya.

 

1.1 Background

Whereas the
Constitution of Kenya acknowledges the supremacy of God,7
the same is clear that there shall be no state religion.8.
If the grundnorm of the land declares that there is no state religion, then it
follows that the moral values of a particular religion ought not to be imposed
on Kenyans who while not necessarily subscribing to that religion, are under
the Constitution of Kenya.

What then does the
Kenyan Constitution say about sexual minorities?

The Constitution of
Kenya, 2010 does not per se mention
sexual minorities and intentionally so. The Constitution of Kenya, 2010 and the
South African Constitution and considered progressive pieces of legislations
with very elaborate Bill of Rights. A comparison of their Bill of Rights will
reveal that they borrow heavily from each other. Since the South African
Constitution was adopted in 1996 and the Kenyan Constitution in 2010, a
conclusion that the Kenyan Bill of Rights was furnished after the South African
Bill of Rights would be well be within reason. Section 9 of the South African
Constitution provides as follows;

“The state may not
directly or indirectly discriminate against anyone on one or more grounds
including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience,
belief, culture, language and birth.”9

Article 27 (4) of the
Constitution of Kenya on the other hand provides as follows;

“The
State shall not discriminate directly or indirectly against any person on any
ground, including race, sex, pregnancy, marital status, health status, ethnic
or social origin, colour, age, disability, religion, conscience, belief,
culture, dress, language or birth.”

Notoriously missing in
the Kenyan list is sexual orientation. To understand why the authors of the
Constitution deliberately excluded sexual orientation from the list, on would
have to study Kenyan politics and understand that adoption of the Constitution
in Kenya was highly politicized and in a society as conservative as Kenya,
inclusion of sexual orientation as a ground for non-discrimination would have
meant that the piece of legislation that we boast of  as containing one of the most elaborate and
progressive Bill of Rights in Africa and the world at large would not have seen
the light of day.

Granted, the deliberate
exclusion of sexual orientation in the Constitution is not catastrophic and for
two reasons. The first is the wording of Article 27 (4) of the Constitution.
The same provides that “the state shall
not shall not discriminate directly or indirectly against any person on any
ground including………” it could be argued that article 27 is not exhaustive
and since the Constitution is to be interpreted in a manner that advances human
rights and fundamental freedoms in the Bill of Rights all while permitting the
development of law,10sexual
orientation is a ground for non-discrimination.

The second reason or
argument was advanced in the case of Toonen v Australia11
where the UN Human Rights Committee interpreted sex as a ground for
non-discrimination under article 2 of the ICCPR to include sexual orientation.
Countries like Kenya that still criminalize same-sex conduct have failed to
adopt this interpretation.

 

1.2 Statement of the Problem

With the primary piece
of legislation of Kenya revealing itself as progressive in the advancement of
the rights of all regardless of sexual orientation, the next step would
ordinarily be to align other laws in Kenya with the Constitution. The Penal
Code of Kenya criminalizes sexual conduct between persons of the same sex.
These laws are collectively referred to as anti-sodomy laws.12

Enforcement of anti-sodomy
laws is impossible without violating the rights of such persons. This is
because by nature, sexual conduct is in most instances performed in private.
Enforcement of anti-sodomy laws would mean that Law Enforcement Officers would
have to violate the right to privacy of such persons outside of the scope of
limitation of rights provided for under the Constitution.13Another
right that is infringed in the enforcement of anti-sodomy laws is the right to
dignity.14In
order to prove that the accused persons indeed engaged in sexual relations and
more so if the persons are men, medical practioners may need to perform anal
examinations which are very invasive and degrading. The Constitution guarantees
absolute freedom from degrading treatment.15
This is one of the freedoms that cannot be limited.

The existence of anti-sodomy
laws has feed the already negative attitude of Kenyans towards sexual
minorities resulting in their discrimination and stigmatization in many spheres
as seen in the introduction to this study.

The problem this study
seeks to reveal is the disconnect between anti-sodomy laws and the Constitution
and the effect of this laws on the achievement of other rights.

 

1.3 Justification of the Study

The twenty first
century has seen great campaigns for the rights of sexual minorities. Few
governments have acknowledged the rights of sexual minorities,16many
others continue to criminalize same-sex conduct.17
Sexual minorities are however relentless in their fight against discrimination
on the basis of their sexual orientation. This study is relevant because it
touches on matters of human rights at a time when there is an urge to protect
the rights of the oppressed.

As stated earlier,
topics on homosexuality are branded “taboo topics” in most African countries. This
study is justified on the basis that it sheds light on an area previously
shunned by our community. The study also intends to add to the few scholarly
resources available on the topic in Africa.

The study may be
adopted by both state and non-state organization advocating for the advancement
of human rights.

 

1.4 Statement of Objective

The main objective of
this study is to shed light on current legal status sexual minorities in Kenya
and particularly homosexuals.  The study
will also look at legislation currently in place and determine whether the same
protects the interest of sexual minorities. In doing that, the study will make
recommendations on the protection of sexual minorities.

1.5 Research Questions

1)      What
is the impact of the criminalization of same-sex practice on the achievement of
other constitutionally prescribed rights?

2)      What
is the constitutionality of sections 162-165 of the Penal Code?

3)      What
recommendations can be made for the better achievement of the human rights
among sexual minorities?

 

1.6 Theoretical Framework

1.61American Legal Realism

Though it is debatable
on whether American Legal Realists constituted a school of thought,18
the works of Oliver Wendell Holmes in the advancement of this school of thought
are commendable. Oliver Wendell Holmes is quoted as saying:

“The
life of the law has not been logic: it has been experience. The felt
necessities of time, the prevalent moral and political theories, intuitions of
public policy, avowed or unconscious, even the prejudices which judges share
with their fellow-men, have had good deal more to do than the syllogism in
determining the rules by which men should be governed.”19

Wendell attacked the
static nature of the law and contended that the law should be constantly
reviewed. He believed that law developed in historical context had been
defeated by ought to be reviewed and aligned with current happenings.

His views on the need
to develop the law so that it reflects the realities of any given time are in
line with the views advanced by this study.

 

1.62 Psychoanalytic Theory of Sexuality

Relevant to this study
is Sigmund Freud’s psychoanalytic theory of sexuality. Freud is credited and
remembered for the following words;

“No
healthy person, it appears can fail to formulate some addition that might be
called perverse to the sexual aim and the universality of this finding is not
itself enough to show how inappropriate it is to use the word perversion as a
term of reproach. In the sphere of sexual life, we were brought up against
peculiar and, indeed insoluble difference as soon as we try to distinguish mere
variations within the range of what is psychological from pathological.”

Freud’s theory refuses
to draw lines between what is normal behaviour and what is not. He advances
that three units are involved in the development of sexual attitude; what he
refers to as the id, the ego and the super ego. He identifies the id as the
part of the human mind which holds our most basic and primal desires. Since it
is impossible to meet all desires at any given time, the ego controls our
desires by taking into account moral and ethical rules. The super ego he
believed allows the mind to control impulses that are frown upon by society.Freud
advanced that culture and civilization have no basis and they exist simply
repress sexual desires.

While I do not
completely agree with his theory,20his
theory is relevant to this study in that it steps away from mainstream ideas on
sexuality and delineates the function of the human mind in this regard.

 

1.7 Methodology

The research will apply
both primary and secondary sources  of
data.

1.71 Secondary Sources

The secondary sources
of data this study intends to use will include; legislative texts, textbooks,
scholarly articles, reports, case laws, newspapers and other academically
relevant sources.

1.72 Primary Sources

Seeing as the topic is
not widely researched on in the Kenyan context, I intend to go the field and
acquire the information relevant to this study first-hand. The study will adopt
non-probability sampling (because the population of sexual minorities is not
that high) and specifically the snowball method (I foresee a difficulty in
personally identifying members of this community).

 

 

1.8 Literature Review

In Reflections on Sexuality and Equality in Africa, Claude Ndemeye
rightly puts it that no other human rights issue has given rise to such
controversy as that concerning sexual orientation. He attributes the lack of
protection of the right to sexual orientation 
and the discrimination of sexual minorities to the lack of an explicit
framework geared towards the protection of sexual minorities and more so the
absence of the phrase “sexual orientation” in international and regional
treaties.

Homosexuality is often
viewed in Kenya and Africa at large as un-African and contrary to African
culture and religion. Advocates of this opinion argue that homosexuality was
introduced to Africa by Europeans during colonization and or by Arabic
traders.  Stephen O. Murray disproves
this by giving numerous accounts of regions in Africa where homosexuality took
place prior to colonization. He further states that in some communities,
impotent men were culturally allowed to engage in this kind of lifestyle. On this
basis, and with the additional argument that the mind-set that homosexuality is
“evil” was largely influenced by Europeans when they introduced their
anti-sodomy laws to Africa during colonization, Sylvie Namwase, Adrian Jjuuko
and Ivy Nyarango agree that depicting 
homosexuality as un-African is inaccurate and contrary to facts.

Scott Long, Widley
Brown and Gail Cooper of the Human Rights Watch Organization approach the
question of whether homosexuality is un-African slightly differently. They
start by defining sexual orientation as the way in which a person’s sexual and
emotional desires are directed and later on say that seeing as homosexuality is
a human and not geographical condition, it cannot be considered un- African.

What the above authors
fail to acknowledge is the question of cultural relativism, which is clearly at
play in the African continent when it comes to accepting sexual minorities and
granting them, what the world supposes is their universal right. Donnelly
distinguishes between strong cultural relativism from weak cultural relativism.
He opines that strong cultural relativism considers culture as the principal
validity of moral rights/rules. Strong cultural relativism he argues does not
acknowledge the universality of rights. Such rights are always measured against
culture and it is solely on this basis that they are either acknowledged or
disregarded.  Weak cultural relativism on
the other hand he argues considers culture to be an important source of the validity
of moral rights/rules though it does not regard culture as the yardstick for
moral rights. There is a slight relaxation when it comes to matters universally
accepted.

Philip Alston and Ryan
Goodman warn that cultural relativism contradicts the basic premise of the
human rights regime. The council also opine in equal measure that
universalization of norms is likely to lead to the destruction of diverse
cultures.

There is therefore a
need to bridge cultural relativism as argued by those unwilling to grant equal
rights to sexual minorities and the rights of sexual minorities not just in
Kenya but in Africa as a whole. The danger of cultural relativism when it comes
to matters of human rights Gideon Uchechukwu argues that societies tend to take
what culture says as the truth even when the result does not benefit the
community. He envisions this as building up and resulting into world chaos and
suggests the need to move towards universal acceptance of human rights without
reservations.

Due to the attitude of
Kenya (both state and non-state parties) towards sexual minorities, not a lot
of research has been geared towards that direction. “The Outlawed Amongst Us,”
a study by the Kenyan Human Rights Commission is arguably the most
comprehensive piece of literature outlining the plight of sexual minorities in
Kenya. As expected, the study recommends the decriminalization of consensual
same-sex conduct by adults an opinion shared by most including Osogo-Ambani who
posits that the existence of penal sanctions legitimizes violence, discrimination
and stigmatization of sexual minoritiesin Kenya.

 

1.9 Scope and Limitation

While the sexual
minority community is vast,21
this study is not intended to cover the entire community. The study will be
limited to lesbian and gay persons. Because of the laxity of the Kenyan
government in protecting the rights of this class of citizens, I foresee a
difficulty in determining the number of homosexuals in Kenya. I equally
anticipate a difficulty in identifying the specific challenges faced by
homosexuals (apart from the obvious) due to the stigmatization associated with
coming out openly as a lesbian or gay person.

Sampling for purposes
of data collection may be a bit difficult. I foresee difficulty in identifying
respondents and getting the information required for my study due to the
sensitivity of the topic.

 

1.10 Hypothesis

The criminalization of
same-sex conduct negatively impacts the realization of rights accorded in the
Bill of Rights such as the right to education, health, housing, equal
protection of the law, association, equality and freedom from discrimination
among others.

Sections 162-165 of the
Penal code are unconstitutional and they need to be repealed in order to ensure
the protection of sexual minorities in Kenya.

1 There are numerous allegations
that Kabaka Mwanga II was a homosexual. Several literature has been written on
the topic though the common response when it comes to allegations that
homosexuality was present in pre-colonial Africa is that the same was introduced
by Arabs. The book Boy Wives and Female
Husbands studies in African Homosexuals divides Africa into regions gives
accounts of same-sex conduct in different African regions prior to
colonization. In Kenya for example, the authors argue that the existence of a
Swahili equivalent for homosexuals is in itself proof that homosexuality is not
a foreign concept introduced to Africa from the West. The author further gives
accounts of homosexuality in various parts of Kenya.

2 The 2012 was film directed by David
Gitonga and selected as Kenya’s entry for the best foreign film in the 85th
Academy Awards (Oscars).

3 Penal Code, 2009 (Revised,
2009), S. 162-165

4 Five form four students from St.
Georges’ Girls Secondary School were expelled over allegations of practicing lesbianism
within the school  http://www.nation.co.ke/counties/nairobi/lesbianism-claim-students-sue-St-Georges-school/1954174-2732084-aojh89z/index.html accessed 16th  November 2017

5 The report by Kenya Human Rights
Commission “The Outlawed Amongst Us” provides an account of how such a tenant
was evicted from his house on such basis

6 2015eKLR

7 Constitution of Kenya, 2010 –
the preamble

8 Ibid Art. 8

9 The Constitution of the Republic
of South Africa, 1996 S. 9 (3)

10 The Constitution of Kenya, 2010
Art. 259 (b), (c)

11 488/1992, U.N Doc
CCPR/C/50/D/488/1992 (1994)

12 Penal Code S.262-165

13 The Constitution of Kenya Art.
24

14 Ibid Art. 28

15 Ibid Art. 25

16 As at 8th August
2017, 26 world countries had legalized same sex marriage (www.pewforum.org) Last accessed on 8/12/2017

17 As at 8th December 2017,
same-sex conduct was illegal in 72 world countries (www.theguardian.com) Last accessed on 8/12/2017

18 Critics of this school of
thought have questioned the validity of it as a school of thought because the
views advanced by the various scholars of this school are varied with very
little or no co-relation despite having common root

19 Sigmund Freud, Three essays
on the Theory of Sexuality (SE 7, Hogarth Press London 1905)

 

21
It includes Lesbians, gays, bisexuals, transgender, queer and intersex (LGBTQI)