Dichotomy and Duality in Kenya:
One Small Step Down the Aisle, Two Giants Leaps Back
KENYA – Following a “groundbreaking” ruling on LGBTQ+ human rights, issued by the Supreme Court of Kenya in late February, it would appear that equal protections are near-and-in-sight for Kenyans of all sexual orientations. However, placing both the opinion itself, as well as the decision’s rampant and wicked backlash under a microscope would seem to suggest that looks…
can be deceiving.
 |
| Photograph: Tony Karumba/AFP/Getty Images
|
February 2023: After a lengthy pre-hearing period, with a file for appeal dating back to pre-pandemic 2019, the Supreme Court of Kenya has finally issued its 3-2 ruling in NGOs Coordination Board v. Eric Gitari (2023). The case stems from an incident that occurred on March 25, 2015, wherein the NGO Coordination Board, a governmental agency tasked with the management and registration of the nation’s Non-Governmental Organizations (NGO), denied a prospective NGO’s slate of six proposed names, and later its application as a whole. The government's purported grounds for rejection; the NGO sought to advocate for, lobby, and “champion” LGBTQ+ rights - and wanted the name to directly reflect that mission.
Citing a myriad of Penal Code statutes, including Articles 162, 163, and 165 (remember these for later), the Board asserted that not only would naming an NGO in a manner that includes any word(s), directly or indirectly, related to LGBTQ+ labels be inadmissible, but that approving such an organization, battling for the group’s human rights, would be “satanic,” “unnatural,” and simply “criminal.” In adjudicating the issue, the Court pointed to Article 27 (c.4) of Kenya’s 2010 Constitution, which states;
“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.”
This principle, in tandem with Article 36, all but laid at the Justice’s feet an explicit ruling wrapped in a neat bow of plain-to-see legal logic. Mincing no words on the matter, the Court stated that the Board’s,
“... decision was discriminatory and that it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants”
However, rather than leave the ruling on constitutional grounds, alone, the Bench ventured beyond the narrow confines of legality, and seemingly towards a communiqué of social activism and advocation, declaring,
“Human rights are inherent and held simply because of being a human. All human beings, including LGBTIQ persons, are entitled to the full enjoyment of all the rights under chapter four of the constitution, not by reason of their sexual preferences as LGBTIQ but as human beings. Just as the rights enjoyed by heterosexuals are not based on their sexual orientation but by virtue of common humanity.”
Such a bold, overt statement of systematic support for LGBTQ+ individuals is something of an unparalleled notion in Kenya, a nation that has received a grade of “F” in every category, every year reported by both the GBGR and GBTR of the F&M Global Barometers. Because of this, it should come as no surprise that pundits, the press, and the public, alike, were quick to buoyantly embolden the decision. Heralding it as a staggering “victory” in a “decade-long battle” for Kenya’s LGBTQ+ community, articles, such as those shown below, circulated subsequent to the ruling, celebrating the group’s newfound legitimacy and the statutory strides of progress which now rested on a once illusory table.
 |
| Source: Peter Muiruri/The Guardian |
However, as government officials, religious leaders, and fringe extremists have raised a vitriolic, abominable uproar in the aftermath, the future of LGBTQ+ human rights in Kenya is shaky at best, and all but decimated at worst. This comes as, in addition to the public’s prejudicial pandemonium, a damning addendum, surreptitiously slipped into the majority opinion’s closing statements, suggests that the battle is far from over…
May 2019: Before jumping into the current status of the struggle over LGBTQ+ human rights in Kenya, it is imperative to step back a few years, to May 24, 2019. Kenya’s High Court, which has subordinate jurisdiction to the Supreme Court, yet still wields the gavel with immense authority, ruled unanimously to uphold Penal Code laws banning same-sex relations, intercourse, and marriage. Initially instituted through British colonial rule, the codes in question “remained a part of Kenyan law after independence in 1963,” offering, as Human Rights Watch described, a continuation of the “dangerous” “mistreatment of LGBTQ people, who report harrowing… abuses, discrimination, and violence.” Additionally, the penalties for committing, what the Kenyan Penal Code of Statutes refers to as “Unnatural Offenses,” and “Indecent Practices” are obscenely severe and unmistakably egregious human rights violations.
For performing, “carnal knowledge,” most commonly known by everyone else in the world simply as - sex - “against the order of nature,” or, as the depraved framers responsible for writing this law, the legislators who elected to maintain it, and the judges who cemented it into precedent, really mean - with a consenting person of the same sex - “is guilty of a felony and is liable to imprisonment for fourteen years.” In fact, the very next Article declares that the mere “attempt” to have consensual intercourse with a same-sex individual is punishable by seven years of prison.
Photograph: Khalil Senosi/AP
Then, only two articles away (skipping the next, not because the Penal Code placed a different, unrelated article in between two banning same-sex sex, but because the connecting law was repealed by Kenya’s Congress in Act No. 3 of 2006, showing that legislators “deleted” one anti-LGBTQ+ law, but felt the remaining were acceptable enough to stay in effect), the Code establishes that “any male person who… commits any act of gross indecency with another male person,” (again referring to sex, but this time, for whatever reason, specifically, between gay men; a law redundant as it is evil), be sentenced to five years in prison. Despite the obviously invidious nature of these punishments, especially considering that an LGBTQ+ man who partakes in gay relations could face a total of twenty-six years in prison, Justice Chacha Mwita stated, in reference to these punitive measures, “We are not persuaded… that the offenses against them [LGBTQ+] are overboard.” In short, the illegality and harsh chastisement an LGBTQ+ person would face, per these statutes, is, in the eyes of the Kenyan High Court, not a big deal. What are these codes, and why are they relevant, you may be wondering? The aforementioned Articles are 162, 163, and 165 respectively. Sound familiar?
March 2023: Back now to the present. With a firm understanding of Articles 162, 163, and 165, the argument raised by the NGO Coordination Board becomes evident. Because any act of LGBTQ+ relationships, ranging from marriage all the way down to attempted intimacy, is against the law, then, as the defendant claimed, registering any NGO, is illegal as well.
Though this assertion did not convince the Court, and the question of association was answered firmly on behalf of LGBTQ+ rights, the case is arguably a greater setback to the community, than it is a triumph. This is because, reaffirmed by the decision, almost in passing, was the constitutionality of sections 162-165. The Court made clear its continued intentions to“criminalize gay and lesbian liaisons,” as the opinion certified the governmental sentiment on these relations as being, “against the order of nature.”
In what can only be described as a profoundly gutting action, the Supreme Court of Kenya proclaimed that, though LGBTQ+ individuals are “non-selectively” recognized as human beings, receive equal protection under the law, and reserve the right to not be discriminated against, “purely on the basis of the sexual orientation,” they are simultaneously barred from living with love, intimacy, and a lived experience of truly being themselves, as these are reserved for those attracted to, “only persons of the opposite sex.” In fact, to experience any of these, would be to explicitly “contravene existing laws, …162, 163, and 165,” and doing so will result in not only subsequent imprisonment but also being “sanctioned” from the freedom of association, as well as other “various constitutional provisions.” Understanding this reality brings to light a new meaning to the quote below, mentioned at the start of this post;
“Human rights are inherent and held simply because of being a human. All human beings, including LGBTIQ persons, are entitled to the full enjoyment of all the rights under chapter four of the constitution, not by reason of their sexual preferences as LGBTIQ but as human beings. Just as the rights enjoyed by heterosexuals are not based on their sexual orientation but by virtue of common humanity.”
2023+: Whatever may be next in store for the LGBTQ+ citizens of Kenya is uncertain, but unfortunately, the outlook is increasingly grim. Despite the group technically gaining legal protections, the statutes outlawing their very existence have been cemented further into precedent, making the repeal of Articles 162-165 a demonstrably harder task. Additionally, the small, bittersweet victory has enraged the masses, and now an onslaught of attacks against LGBTQ+ human rights are coming from every direction. Known gay and lesbian Kenyans are faced with increasing, “...confrontations with landlords and employers,” resulting in the forceful loss of housing, jobs, and legal and health services. Moreover, targeted violence and hate crimes against gays is surging, with prominent activists commonly going missing or being murdered, all with no indication that the attacks will slow.
Yet, the counter-offensive against LGBTQ+ rights isn’t exclusive to rogue individuals or niche public coalitions. The sentiment extends to innumerable powerful religious and political leaders. The many evangelical churches in the nation have joined in a collective and unrelenting admonishing of the ruling, with one Bishop, Caliso Odede, equating LGBTQ+ people to “other illegal practitioners like paedophiles and those involved in incest.” Legislators and lobbyists are working actively to institute “harsher penalties against LGBTQ'' and expanded provisions to include “lesbianism, transgender, and queer practices” in writing for both new and existing bans. Even the President of Kenya, William Ruto, has joined the anti-gay movement in brazen fashion, claiming that the nation’s “culture and religion does not allow same-sex” representation, and that progress, “...is not possible for our country. …It will happen in other countries, but not in Kenya.” Accordingly, Ruto has coordinated with his Attorney General, Justin Muturi, who proclaimed that he will “head to the Supreme Court to challenge the ruling,” himself, as he believes, “seeking full bench… to address the matter,” is “in the important interest of the public and country.”
International support for LGBTQ+ Kenyans and acknowledgment of the current risks to their rights appears to be negligible. Googling, news article surfing, Hashtag-mining, and press release hunting for any statements from global leaders, human rights organizations, or even overly privileged A-list celebrity activists, all seem to show similar results; scarcely a word in a vacuum of worldwide silence. Perhaps this will change, or perhaps the fight for human rights should be left all to Kenya, itself. Either way, something needs to be done so as to see the day when the Kenyan government says,
“Human rights are inherent and held simply because of being a human.”
...and means it.
Photograph: Noel Celis/AFP/Getty Images
No comments:
Post a Comment