The Supreme Court of Kenya recently pronounced itself on the right of members of the LGBTIQ community to form and register an association by dint of Article 36 of Kenya’s Constitution. The Apex Court delivered a judgment in favour of members of the said community. Those who, well within their right, do not agree with the judgment have advanced views that I would like to think to generate a lot of heat with very little light. Some even go to the extent of using very nauseating language in their criticism of the judgment with intolerance and hate written all over their tone. Sadly, some of the notorious culprits are our religious and political leaders.

Whereas I have nothing but respect for our religious leaders and the conservatives among us, I am constrained to ask the following questions; Are members of the LGBTIQ community human beings? Are they below the law or worthy of its protection? Is Kenya a state religion? Are there provisions of our Constitution that our religious leaders and the conservatives among do not agree with?

To be sure, members of the LGBTIQ are human beings. That should be a no-brainer. They live among and with us. They could be our parents, children, teachers, religious leaders, politicians, family, friends, enemies etc. Members of the rainbow community are therefore worthy of the law’s protection by virtue of their humanity. They are humans first before being homosexuals and are entitled to the human rights we all enjoy and like all of us, limitation of their rights can only be by law to the extent that such limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. That is the law as per Article 24 of the Constitution of Kenya, it is not me saying it. Drafters of the Constitution were not short of words when including the word “open” in that provision. The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. When the impugned judgment was at the Court of Appeal in NGO Coordination Board v EG & 5 Others [2019]eKLR , Justice Makhandia had the following to say:

“In any democratic society, there will always be a marginalized group incapable of protecting their rights through the democratic process. Once we, as a society understand there are people, whose sexual orientation is different from the norm and human rights belong to all persons by virtue of them being human beings, it will be easier to respect their fundamental rights and freedoms. I do not understand the Bill of Rights as meant to protect only the individuals that we like and leave unprotected those we find morally objectionable or reprehensible. In any case, Article 10 of the Constitution obliges us to protect the marginalized.” [Emphasis mine]

He continued:

“Shorn of the scary apparitions and postulates put forward by the appellant and its supporters in the event this appeal is not allowed, such as: ‘homosexuality will be legalised’; ‘decadence, immorality and disease will strike our nation’; ‘same sex marriages will be the order of the day’; ‘sexual abuse of young people will dramatically increase’; ‘murderers and other miscreants in society will be at liberty to register Associations’; ‘floodgates will be opened for paedophiles’; ‘Christian and Islamic values will be obliterated’; ‘societal moral values will be shredded ’; ‘cultural rights will be trampled upon’; ‘there is an international conspiracy to promote gay rights’; this appeal is really about the place of our Constitution in our lives.

How far did the Kenyan people want to go in relation to national values, human liberty, freedom to associate, speak, assemble, human dignity, fair administrative actions and protection against discrimination” [sic]

A lot of references to religious texts have been made by critics of the Supreme Court decision. A good friend told me that courts of law do not operate on the Bible if Article 8 of the Constitution is anything to go by. The Preamble of our Constitution also expects the people of Kenya to be proud of their cultural and religious diversity. An assumption should also not be made that members of the LGBTIQ community do not believe in a Supreme Being or that they do not practise religion. And if homosexuality is to be taken as a sin then point me to any person who lives in this troubled and imperfect world who is not a sinner. Are we not all sinners but have still been granted the benefit of the law as spelt out in our Constitution? The opening statement of Justice Waki’s judgment when the impugned decision was at the Court of Appeal reads as thus:

John Chapter 8 verse 7:-

‘When they kept on questioning him, he straightened up and said to them, let anyone of you who is not without sin be the first to throw a stone at her.’

That is a familiar Bible story of profound significance. A prostitute had been found in the act of adultery. At the time of Moses, adultery was a serious moral and criminal issue. One would be stoned to death once identified with it. I suppose it is still a serious moral issue today in our country, although we do not appear to have criminalized it despite our Judeo-Christian and Islamic heritage. If Mosaic law applied in this country, I suspect half the population would be stoned to death. But Jesus had a straight answer to the teachers of the law and Pharisees who came tempting him on Mosaic law; ‘ the first to throw a stone at her’. None of them did. They all walked away in shame. That was about 2000 years ago…”

For far too long, members of the LGBTIQ community have been regarded as lesser mortals. Our society has ridiculed  and abused them. They have been denied a conducive environment and basic human dignity in public places including schools, workplaces and hospitals. Homosexuals have been equated to paedophiles and rapists, their only mistake being having a mind and/or and body that disowns their biological gender.  Homophobes have chosen to ignore the trauma, agony and pain that our fellow human beings undergo for being different from us. It is in all these that the Constitution comes in. To protect the marginalized minority amongst us. Justice Koome, as she then was, partly addressed this issue in the following words in NGO Coordination Board v EG & 5 Others [2019]eKLR at the Court of Appeal:

“[49] I understand the Board to be saying that gays and lesbians will corrupt and endanger the society especially the hallowed institution of family. Nonetheless the Board did not present any evidence to demonstrate that the evil that abound in the society today, from corruption, to murders, rapes including within the families are brought about by LGBTIQ. Nor did they provide evidence to show persons who commit offences under Sections 162,163, and 165 of the Penal Code are LGBTIQ. Counsel for the appellant and even the Attorney General isolated the family as one institution whose ‘human survival’ would be threatened if the proposed NGO was registered. My humble view of the matter is that the institution of marriage cannot be threatened by an association of LGBTIQ; marriage is anchored in the Constitution, and it is an institution that one enters out of choice. Moreover there are many people who enter it and leave it, not because they are LGBTIQ; others enter marriage and choose not to procreate and others do not enter marriage at all and they are not LGBTIQ. There are people who are heterosexuals and they do not engage in sex of any kind out of choice, it is also possible there are homosexuals or LGBTIQ people who do not engage in sex also out of choice…

[52] For the aforesaid reasons, I find no merit in this appeal as overturning the impugned judgment would undermine the gains made over the years in promoting, protecting and building a culture of respect and tolerance of differences that abound in the society. Allowing the appeal would be stereotyping people and expecting everybody to be the same size fits all. Like the old adage says ‘we are made from the same cloth but cut in different shapes and sizes’ this society is not akin to the ‘Animal Farm’ by George Orwell. The Constitution is the equalizer, it allows everybody to be and if some people are sinners, God will deal with them, no one can judge for Him. If others break the law, the law will take its own course against the law breakers, no one can judge them until that happens. The Constitution is the ultimate guide and liberator from the shackles of all kinds of discrimination. Its bold provisions also domesticate the International human rights law which can be called to aid in the event of a gap within our very own indigenous and rich jurisprudence…” [Emphasis mine]

Once a Constitution is written and passed in a referendum, like ours was, it becomes supreme on matters law of the land. That is not to say that a promulgated Constitution is a perfect document. This informs my interest in knowing whether it is the text of the Constitution or the interpretation the Supreme Court and the courts below it adopted that homophobes have an issue with. On the text, Article 36 on freedom of association uses the words, “every person”. As settled above, members of the LGBTIQ are persons. When the NGO Coordination Board denied them the opportunity to reserve a name for the registration of an organisation, they were therefore entitled to move to court to seek protection from unfair discrimination by the board on the basis of their sexual orientation/behaviour/identity. On interpretation of the Constitution, Article 20 mandates our courts to adopt an interpretation that most favours the enforcement of a right or fundamental freedom and one that promotes the values that underlie an open and democratic society based on human dignity, equality, equity and freedom. Our courts of law have been provided with guidelines to follow when interpreting the constitution devoid of popular or unpopular opinion. It is the law in John Harun Mwau & 3 Others v Attorney General & 2 others; Petition No. 65 of 2011 that public opinion cannot be the basis arriving at a court decision. Justice is blind and, at times deaf. If the Constitution provides for a human right or fundamental freedom, let justice be done, though the heavens fall.

In conclusion, In Re the Speaker of the Senate & Another v Attorney General & 4 others, Supreme Court Advisory Opinion No 2 of 2013; [2013]eKLR, the retired Chief Justice, Dr Willy Mutunga expressed himself in a manner that is of great jurisprudential import. He stated as follows in his concurring opinion:

“[156] The Supreme Court of Kenya, in the exercise of the powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognizable reference-points that the lower courts and other institutions can rely on, when they are called upon to interpret the Constitution. Each matter that comes before the court must be seized upon as an opportunity to provide high-yielding interpretative guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents. The court must also remain conscious of the fact that constitution-making requires compromise, which can occasionally lead to contradictions; and that the political and social demands of compromise that mark constitutional moments, fertilize vagueness in phraseology and draftsmanship. It is to the courts that the country turns, in order to resolve these contradictions; clarify draftsmanship gaps; and settle constitutional disputes. In other words, constitution making does not end with its promulgation; it continues with its interpretation. It is the duty of the court to illuminate legal penumbras that Constitution borne out of long drawn compromises, such as ours, tend to create. The Constitutional text and letter may not properly express the minds of the framers, and the minds and hands of the framers may also fail to properly mind the aspirations of the people. It is in this context that the spirit of the Constitution has to be invoked by the Court as the searchlight for the illumination and elimination of these legal penumbras…”

May you love your neighbours as you love yourselves and may the peace of the Lord be with you.

The author is a trainee advocate at the Kenya School of Law with a great passion in law and politics.


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