I vividly remember April 2010, when we stuffed our van with thousands of copies of the Proposed Constitution of Kenya, and embarked on Kenya’s first national LGBTIQ civic education program. The country was about to vote on a new constitution; Kenya was re-defining itself for generations to come. I was a young, driven lawyer who had left private practice to head the LGBT program of the Kenya Human Rights Commission. It had been months of planning, long calls with activists, and complex security arrangements around meetings, but we saw the opportunity just around the corner.
The findings from our civic education program were heart-wrenching. We received reports of rape, assault, blackmail and extortion, expulsions from schools, exclusion by families, work dismissals, low uptake of health services, and many other tragedies - all due to the victim’s sexual orientation or gender identity. Consensual private same-sex intimacy is still a criminal offence in Kenya, a law which is used by perpetrators to justify human rights violations and informs public policy and attitudes towards suspected LGBTIQ people. We sent advice to the constitution drafting committee strongly calling for the inclusion and equality of LGBTIQ Kenyans.
When there was a resounding victory in the referendum, and the Constitution of Kenya 2010 was enacted, we saw the beginning of the solution. Even though the final draft had no explicit mention of sexual orientation or gender identity, it nonetheless possessed golden threads of equality, dignity and freedom, better still whose defense had been entrusted to an independent judiciary.
Today, Kenya stands out as a leader on LGBTIQ equality within sub-Saharan Africa. During the last five years, courts have allowed for changes of gender markers in official documents for transgender persons and ordered the state to establish a policy on intersex births. The government has consistently consulted with LGBT groups and included them in national public health initiatives and research programs that are now being replicated in neighboring countries. Universities have included LGBTIQ precedents in their law school curriculums, giving future lawyers a universal approach to human rights.
The Attorney General committed to passing equality legislation that includes gender identity and sexual orientation by 2022. The ministry for interior consistently grants asylum to hundreds of LGBTIQ refugees from Uganda, Somalia and other regional neighbours. And perhaps most significantly, the High Court in Nairobi ruled that sexual orientation was protected under the non-discrimination provisions within the Kenyan constitution, and mandated therefore that the state could no longer continue to deny the organisation I work for legal NGO status. If the state is not allowed to deny LGBT organisations their freedom of association rights, we will be able to continually call for change. This ruling was relied upon as an authority by the Botswana Court of Appeal in allowing registration of an LGBTIQ organization in Gaberone.
Yes, we still have anti-gay laws, and government data shows 595 such prosecutions between 2010 and 2014. Homophobic and transphobic human rights violations still occur with disturbing frequency. Political and religious elites stir up homophobia, but I believe Kenyan society has moved on from such obvious tactics of political distraction. Kenya has historically, and continues to place itself as a regional powerhouse. This leadership and its broader engagement with the international community necessitates a trajectory of change towards greater liberalism in its domestic laws and policies. And as the legal system moves towards greater equality and transparency under the rule of law, societal attitudes will follow. They already are: the latest Pews Global attitudes survey shows a decline in Kenyan homophobia compared to five years ago. Things are changing.
Though as encouraging as progress has been so far, there is more left to do, and we social justice actors cannot slip into complacency. We must not shy away from demanding our rights. We resolve this year to fight on, against laws and policies that deny us the freedom to live with dignity, free from forced evictions, extortion, entrapment, violence and death. We will not allow the state to maintain laws which brand us as unnatural and make us un-apprehended felons. We shall not walk in the shadows our entire lives then miserably stumble unto death.
As a Kenyan I believe that holding a candle up to the dark is better than surrendering to it. We, the thriving community of LGBTIQ Kenyans, live for the day when we can all walk in the warm light of equality.
© Eric Gitari
The author is a lawyer with the National Gay and Lesbian Human Rights Commission in Nairobi, Kenya