The legitimacy of a government is attached to the ability of such government through its agents to protect its citizenry from harm that may be caused by the everyday frictions of life. It is the duty of a State to protect the society from solitary, brutish, and unhappy life, which is attributable to the state of nature as propounded by Thomas Hobbes Social contract theory. Closer home from Hobbes social contract theory, Kenyans, like other civilized societies, have in place the Constitution which embeds the rights and duties of citizens as well as the limits of such rights enjoyed by citizens, the Constitution is a supreme social contract instrument executed by collective voting or legislative action of the citizens and the representatives mandated to make law for the State. The Constitution as a supreme law upon which citizens agree and set limits to bring some social order that was lacking in Hobbes state of nature. The supreme law reflects the aspirations of a nation, desires of private citizens, and sets moral standards for the nation. For instance, Article 10 of Kenya’s Constitution represents the aspirations, reason, and willingness of Kenyan people to fight impunity as they embrace good governance values and principles christened as the National Values and Principles which every person must uphold in their relations. The Bill of Rights sets boundaries for private citizens as well as the State agents in as far as an encroachment to individual liberties is concerned. In Hobbes’ society, he argues that there was a need to limit the actions of human in as far as pursuance of personal and selfish gains over others is concerned. The citizens by way of referendum go to the voting booths to allow the State rights to limits the duties of the State at reducing its involvement in private lives. The State is not invited in a contractual relationship between two sound adults, but it can be invited to prosecute a private person defrauding another as they pursue self-gain which gives the current fight against corruption some societal backing. Prudent use of public resources is at the heart of Kenya’s Constitution, which gives State agencies right to trouble State officers accused and suspected of mismanagement and pilferage of public resources. The State also has a duty to enforce the required public order to ensure the safety of person and property. Besides, State is obliged to protect the vulnerable in the society so that they are free harmed by the brutish actions of the selfish people. As such, it is in the spirit of societal order, justice, and fairness for the society to protect its school going kids from sex pests by enforcing Sexual Offenses Act against pedophiles since children are believed to be weak and unable to make competent decisions thus requiring collective protection from the society. The State is also welcome to arrest and prosecute rapists making women’s life brutish and solitary. To this extent, the police are allowed to limit the enjoyment of rights and freedoms guaranteed to every person to prosecute them for painful actions on vulnerable members of the society.
Without a social contract instrument, there could be nothing like human dignity, as strong members of society would recklessly trample upon the weak and minority groups in a majority society. Indeed life without a constitution and other laws would be brutal. It would be anarchical. Sex pests would rape at their own pleasure since no one cares about the welfare of children. Lustful men and women would fearlessly rape since there is no risk of arrest. Truly, life would be brutish to the children born and grown in such a society. A society with no laws to protect the weak would be hell. With no powerful government to arrest rapists, life would be brutish for vulnerable men and women. Now that human-made law and Kenya luckily has a very progressive supreme, nobody should worry about any form of discrimination. Kenyan grundnorm did away with extraneous State excesses. It did away with marginalization and discrimination in Kenyan public space laws, regulations, and policies. Even the retired colonial laws were scrapped.
The framers avoided the same-sex marriage issue. It was tactfully designed and markedly ignored due to the tacit agreement that no one would ever mention same-sex marriages to the electorates during the plebiscite. No one mentioned same-sex marriages, but everyone mentioned opposite-sex marriages to avoid a head-on collision with the church. In the worst-case scenario, it would be a contest between the minority supporting same-sex marriages on one side, and a majority on the other. Courts in progressive interpretation have annulled Penal Code provisions incriminating man-man or woman-woman sex. In its words, the outlawed Sexual Offences Act is termed as unnatural. Natural and legal is opposite-sex marriages. Rape is illegal because of lack of consent from the rape victim. Opposite sexual intercourse is allowed, but same sexual intercourse is prohibited. Sex and sexuality is a private affair and thus difficult to discern a straight, gay or bisexual person. It goes to the center of downgrading people’s dignity to catch them in the act of engaging in same sexual intercourse. For a police officer arrest two gay partners, they need to stalk them and obtain a warrant of arrest to be executed on the suspected gay partners. The Constitution is on ‘as is’ terms that every person is equal and should be treated as such before the law. Without having some loathsome, indignifying and shameful anal tests and confessions may be, nobody would ever know whether their friends are gay or straight. If partner A and B are opposite-sex partners and A rapes B, A can be arrested on B’s booking for violating and inflicting pains on B. Nobody would ever know whether A was raped if A decides to remain silent, the police will not have problems with B. On the other hand, if A and B are gay partners and consensually engage in same-sex intercourse, with or without either of the partner reporting a sexual assault, police can invade their privacy arrest and charge them. Constitutionally the same-sex partners are exposed to unequal treatment by their own laws. Awaiting repeal of the penal laws incriminating same-sex sexual intercourse let it be known that gays, lesbians, and bisexual persons are entitled to equal treatment. Therefore, it should not be worthy of police or societal attention that so and so is a gay, and is not fucking right. The most important thing is having the State keep off A and B’s affair in the same they would if they were opposite-sex partners unless either of the partners complains of sexual assault.
ELIUS KATHERU KUBAI is a Bachelor of Laws Student at Kenyatta University