In an opinion piece published in the Star edition of September 20, 2023, titled 'Kaluma's anti-gay law' is timely, the author endorses Homa Bay Town MP Peter Kaluma's Family Protection Bill, 2023, asserting that it is a timely response to the LGBTIQ+ community.
The author, unfortunately, does not outline why such a response is needed. LGBTIQ+ Kenyans are a marginalised and oppressed minority in the country, already living in fear of attacks, vilification and discrimination in all areas of our society.
Many unfounded and false rumours against this community exist and contribute to the stigma associated with being LGBTIQ+. LGBTIQ+ Kenyans are also at risk of harsh imprisonment if found to have engaged in adult and consensual sexual relations and may be unduly targeted by other laws.
It is essential to highlight that the Family Protection Bill undermines the principles enshrined in the Constitution and threatens the rights of all Kenyan citizens, irrespective of their sexual orientation and gender identity and expression.
Previous versions of the Bill show that it aims to severely limit the freedom of expression, assembly, association, the right to an opinion, freedom from discrimination, and even freedom of belief and conscience.
Additionally, the proposed law introduces new crimes that are vague and overly broad, discriminatorily targeted at LGBTIQ+ persons or crimes already exhaustively covered by existing laws such as the Sexual Offences Act and the Children Act.
The recent Supreme Court decision affirming the right of LGBTIQ+ persons to form associations to advocate their constitutional rights is not a one-off. Both the High Court and Court of Appeal affirmed this right in line with constitutional provisions.
Additionally, the Supreme Court unanimously rejected a petition by Kaluma to have its recent decision on the freedom of association reviewed. It is time to put to rest the notion that LGBTIQ+ Kenyans do not enjoy the same rights as other Kenyans.
Contrary to the allegations proffered in the opinion article in question, the Constitution does not in any way outlaw adult and consensual same-sex relations. Existing anti-LGBTIQ+ laws, policies and practice that predate the Constitution must be scrutinised to assess their impact on our constitutional and democratic order.
The principles of equality, non-discrimination, and individual human rights are central to our democracy. Any attempt to restrict constitutional rights in the name of “family values”, as proposed in the Family Protection Bill, is inherently unconstitutional and is likely to suffer a similar fate as Kaluma’s recent venture to the Supreme Court.
LGBTIQ+ rights remain a controversial topic in Kenya since many Kenyans rely on moral and religious teachings to form their opinion about LGBTIQ+ individuals. Religious beliefs, while important to many Kenyans, should not dictate our laws or public policies.
In a secular state like Kenya, our laws must be grounded in constitutional principles that prioritise the rights and freedoms of every citizen. A secular constitution and legal framework guarantee that one’s religious beliefs can never be used as a justification to limit the rights of others.
While the protection of the family is important, it should not come at the expense of violating the rights of any group within society. Indeed, there cannot be any meaningful family protection without a strong legal framework that protects the rights of individuals within families and other social groups.
Human rights and public policy specialist. [email protected]
