• The judges were petitioned to rule on matters of law and unconstitutionality of discriminatory practices against a minority group.
• However, they raised matters of morality and religiosity in their judgement.
Image: ANNET WAMBULWA
On Friday, May 24, all eyes were on the High Court in Milimani, Nairobi. A ruling was read out loud for about two and a half hours that was closer to a moral and religious turpitude than a legally reasoned judgement.
The honourable court, presided over by Lady Justice Roselyne Aburili, and empanelled to include Justices Chacha Mwita and John Mativo, delivered the ruling while sitting at the constitutional division of the High Court.
By citing the Constitution of Kenya, in its various Articles, the judges made many think our country is a religious and moral society, yet it is not. Article 8 of the Constitution declares Kenya as a secular State, where there is no State religion, to guide what human rights and fundamental freedoms we choose to defend.
The judges raised matters of morality and religiosity, whilst they were petitioned in the consolidated petition to rule on matters of law and unconstitutionality of discriminatory practices against a minority group.
A minority group, according to Article 260 of the Constitution, is any group(s) of persons who have suffered from exclusion or marginalisation by law or practice, as a result of policy of the State or practice by its agents. Given the nature of the petition at hand, no one would doubt whether the Lesbian, Gay, the Bisexual, Transgendered, the Intersex and Queer (LGBTIQ) have suffered numerous types of discrimination over the years.
WHAT PETITIONERS WANTED
In a nutshell, these two petitions sought to shield the LGBTIQ /SOGIE community from abuse of office by authorities, whether police or health professionals; shield them from discriminatory practices in the application of law for offences that remain undefined to date; and also, shield them from ridicule from society in general, which largely comes in the form of stigma and outright violence once in a while.
BACKGROUND
The judgement related to two petitions, which were later consolidated: petitions number 150 and 234, both of 2016. These two sought a declaration of the Sections 162 and 165 of the Penal Code as unconstitutional.
Specifically, the second petition went further to seek the State protect minorities from discrimination in the health sector, not to mention prohibit any type of discrimination on sexual orientation and gender grounds, which should be protected insofar as Article 27 of the Constitution, read together with Article 260, guarantees.
In this petition, the human rights issues fell squarely on the matters of Sexual Orientation, Gender Identity and Expression (SOGIE). The questions were succinct. First, whether the right to equality and anti-discrimination were violated. Second, whether the provisions of the Penal Code impede the community from enjoying the rights to healthcare, as per Article 43.
Third, whether the Penal Code provisions violated the petitioners’ rights to fair hearing and administration of justice. Fourth, whether the rights to security and integrity of the person, as per Article 29, were violated. Finally, whether other rights, including the rights towards human dignity or privacy, or freedoms of conscience, belief, opinion, among others had been violated.
In a nutshell, these two petitions sought to shield the LGBTIQ /SOGIE community from abuse of office by authorities, whether police or health professionals; shield them from discriminatory practices in the application of law for offences that remain undefined to date; and also, shield them from ridicule from society in general, which largely comes in the form of stigma and outright violence once in a while.
All the 8 petitioners were addressing the Attorney General of the Republic as the main respondent. Together with 10 “interested parties” and two “friends of the court”, the case was heard to its logical conclusion — may be, to its illogical conclusion, as shown hereunder.
Be that as it may, as the judges noted, there was reliance on many case laws (national, regional and international) in support or vilification of the Penal Code provisions. Suffice to say, both arguments were placed before the judges to make a judicious determination, which is not only legally sound but also bound by the ‘activist’ Constitution that Kenya has. In the view of this commentary, the judges erred.
In the words of Michele Bachelet, the leader of the UN High Commissioner for Human Rights (UNHCHR): “…criminalising acts targeting certain individuals based on who they are and whom they love is inherently discriminatory. It also sends a dangerous signal to broader society and encourages hostility and even violence against [LGBTIQ] individuals.”
Eric Gitari, who was the first petitioner, had stated the same sentiments inside the courtroom, immediately the judgement was rendered. One needs to read the book The Outlawed Amongst Us, by the Kenya Human Rights Commission (KHRC), to understand what is going on, with regard to discrimination of LGBTIQ in this society.
The judges went on a diatribe about same-sex unions, which was not part of the questions placed before them, and made it clear that they never understood the subject matter of the petitionTom Kagwe, JP
CONSTITUTIONAL IMPERATIVES
The Constitution of Kenya is written very simply, so the people could exercise their powers to protect, defend and uphold the Constitution in accordance with Articles 3, 22 and 258 of the Constitution. The abovementioned Eric, together with all other petitioners, pleaded with the High Court that their life is a living nightmare at the hands of public officers who are sworn to defend, uphold and respect the Constitution.
Therefore, when judges dismissed the petition, most of those in the courtroom were flabbergasted by the decision, thrown in their faces, despite express provisions of the Constitution. Of course, representatives of the Christian faith, including right-wing evangelicals and the representative of the Islamic faith, were elated by the judgement, not to mention some “interested parties” that were politicians.
While the judges relied mostly on Articles 24 and 45 of the Constitution to decide what they did, the constitutional imperatives are very sound, unlike they made it to be. First, Article 24 provides that rights have limitations, except rights that are guaranteed in the subsequent Article 25.
Whereas Article 24 provides that other rights could be limited, by law and very exceptionally, for purposes of protecting our democracy and open society, the same Constitution in Article 27 provides that there are protected grounds that the State, including all other juristic and natural persons, cannot discriminate on 17 grounds, and which is an “open-ended” list.
Thus, it is the perspective of this commentary that the framers of the Constitution expected new grounds could be included, such as sexual orientation or genetic composition, and such other protected grounds found in international laws and norms.
To prove the point is that the same Constitution cites, in Article 2, that all international laws and norms (read, international instruments which Kenya is party or signatory to) are part of the laws of Kenya under the Constitution. This provision moved Kenya from a “dualist” to a “monist” country, meaning Kenya does not necessarily have to “domesticate” international law into its statute books for it to respect, uphold and defend the same.
In relying on Article 45, the judges stated that Kenyans are of the opinion that family values are paramount, and, therefore, a family consists of a father, mother and children. Thus, there is no way the LGBTIQ community could start a family against express provisions of the Constitution, which prohibit any person from marrying from any sex other than the opposite sex. So the judges went on a diatribe about same-sex unions, which was not part of the questions placed before them, and made it clear that they never understood the subject matter of the petition.
Discrimination has nothing to do with same-sex unions; it was simply that the judges were clutching at the fickle straws of failed arguments by the “interested parties”, whose brief was to lecture others on morality and religiosity. Indeed, there is overbearing and glaring evidence both in the churches and mosques of egregious violations of morals, religiosity and human rights. Hence, they have no moral authority to lecture anyone.
LEGAL FLAWS
The legal blunders that the judgement elicited could be classified into three. First is the law; second is evidence; and third, are facts. These are the main pillars of any proceedings in law and resultant judgement.
Beginning with the latter, facts are either there or not. When the judges pronounced that there is no scientific fact to prove that the LGBTIQ community is born as is, then this is very dumbfounding! The transgendered persons are those trapped inside either body of the two main sexes (male or female). The intersex are born with genitalia of both male and female. This is scientifically proven.
On the other three, that is lesbian, gay and bisexual, studies over time have oscillated between being born the way they are or inheriting such episodic characters based on the socialisation process, which has been ably documented in the social sciences. This is science. On facts, they failed to contradistinguish the same.
Second, on evidence, the judges stated that there was no evidence to depict that the Constitution was violated, other than sketchy stories by those who testified. All witnesses gave personal encounters, with a very high risk on their side, to state what they have gone through in many social, economic and political encounters. Media stories, personal stories and publications have more than evidence. The KHRC publication above, The Outlawed Amongst Us, summarises them.
Third, on law, the judges cited that the Penal Code is consistent with the law. Kenya is a constitutional democracy. While the judges cited the social issues facing Kenyans, they forgot woefully to recognise that democracies are based on majority rule, but minority opinion is respected and defended. That is what constitutional democracies are about.
By citing India, United States, Ireland, Australia, South Africa, among others, all of which have dealt with this matter conclusively and positively, the judges “returned” home and stated that there is no evidence in the review process that “sexual orientation” was envisaged. Wrong. It was and that is why the protected grounds are an “open list” not a “closed list”. It was an error in their judgement of the law.
FINAL WORD: HOMOPHOBIA ENHANCED
By dint of that judgement, the three justices made a monumental error of law, evidence and facts. This judgement seemed to be based on appealing to and appeasing the majority at the expense of the minority. That is not what the Constitution is about. That is not what the judiciary is about. The case should be appealed, within the set time-frame, in the hope that the Court of Appeal will provide better direction on this matter. The High Court erred.
Tom Kagwe, JP, is a Board Member at Independent Policing Oversight Authority
Disclaimer: The views contained herein are those of the author, and do not represent any institution, whether affiliated or not, but are simply meant to generate views, debate and analysis of the issues raised herein, which are inherently about the Constitution of Kenya, not morals, not religion, or any other social debate.