• Anal intercourse is prohibited by Section 162 and, for men, other forms of satisfaction by Section 165 of the Penal Code.
• The law makes it impossible for gay couples to get sexual satisfaction in their relationship. They are discriminated against.
We felt there was room for an analysis of what the court itself said in the recent case about decriminalisation of homosexual activity.
We do not have space to discuss uncertainties about meaning, so take as our starting point that the law makes it a crime for men to engage in sexual activity with each other. Almost certainly it does not make sexual activity between women a crime.
Is that law unconstitutional?
Under Article 27, no one is to be discriminated against. There is a list of specific reasons that might be used to discriminate (including race, sex, belief, and dress). But this is not the complete list but just examples.
The people who brought this case to court (the petitioners) argued that the law discriminates against gay people. The Court said essentially “no it doesn’t; look - one section says it is a crime for any person to have sexual intercourse in a certain way and the other says it is a crime for any male to do certain things. So it does not discriminate against gay men in either section.”
Heterosexual couples can express their attraction to each other in a variety of ways, including sexual intercourse, which the law has no problem with.
But homosexual couples do not have this possibility. Anal intercourse is prohibited by Section 162 and, for men, other forms of satisfaction by Section 165 of the Penal Code. So the law makes it impossible for gay couples to get sexual satisfaction in their relationship. They are discriminated against.
Not only is this common sense, but it is also in Article 27(4): “Indirect discrimination” is prohibited.
Indirect discrimination occurs when the law does not say clearly that certain categories of people cannot have or do something but that is the practical effect. That is the situation here – the law hits gay men harder than anyone else.
BYPASSING ARTICLE 24
Generally, we cannot insist on our rights regardless of the public interest. For a valid purpose (compatible with a democratic society “based on human dignity, equality and freedom”) the law may limit most rights.
But a court must look at the right, at the social purpose served by limiting it, and whether it would be possible to achieve the social purpose without limiting the right so much.
These judges know all this perfectly well, but managed to avoid carrying out this analysis, which would have required them to ask “what is the purpose being served by this law?”
They used Article 45 that stresses the importance of the family and says everyone has the right to marry — someone of the opposite sex. By the way, it does not say “gay marriage is banned”; Parliament could constitutionally pass a law legalising gay marriage.
We agree, however, that the Constitution makers were not prepared to suggest that anyone had the right to marry someone of the same sex. That right would have made the Marriage Act definition of marriage as “union of a man and a woman”, unconstitutional.
But the court says Article 45 also makes it impossible to allow gay sex. It reads Article 45 as if it said “You have no right to have sex with anyone of the same gender”.
But we all know sex and marriage do not necessarily go together. Adultery is not a crime. And though, as the court says, a long-term sexual relationship may be treated like marriage for some purposes, it never becomes a marriage and is not ended by divorce. The “thin end of the wedge” argument is not convincing.
Why does the Constitution focus on gay marriage? Surely it is because people have been resistant to the idea of a formalised union between gay people, especially one called “marriage”. Many have felt that it was somehow sacrilegious to allow gay couples to enjoy it.
The court said if nothing prevented Kenyans expressly allowing same-sex relationships in the Constitution.”
But nothing prevented them from declaring gay sex prohibited, as opposed to only excluding a right to gay marriage. In such a situation is not the best approach to restrict ourselves to what the Constitution says, not embellish it?
If the court had not evaded Article 24 in this way, the first question would have been, “What is the purpose of criminalising homosexual activity?”
The origin of the provision is in late 19th Century English law and social attitudes. Hardly justification for the 21st Century Kenyan law.
One argument would have been: “to preserve Kenyan culture”. Preserving culture is a legitimate constitutional objective.
But what does “This is not Kenyan culture” mean? Many cultures — not all — have frowned on homosexual activity – and not only in Kenya or Africa. Very few cultures have positively embraced homosexuality activity.
But is “This is not our culture” more than saying, “We are intolerant of people with different ideas and habits”. Is this a commendable aspect of anyone’s culture?
The Constitution is clear that culture must not be contrary to human rights.
And our President has said he hopes to see FGM eliminated during his term in office.
Yet clearly, FGM is an obstinately persistent part of many Kenyan cultures. We all, the courts especially, know that culture is important but not sacrosanct.
Is it because gay sex does not produce children? But we don’t criminalise sex using contraceptives, sex in old or sex for the infertile.
Is it because gay sex is against religion? But we have freedom of religion. No religion (even under the guise of “God Bless Kenya”) is written into the Constitution.
In reality, is it not because of a combination of distaste and difficulty in accepting someone who is different?
The Constitution is clearly against the idea that it is acceptable to discriminate against just because they are different.
And as for distaste, first of all the solution is not to bother yourself about what people do in their bedrooms. And secondly what makes disgust a valid reason for penalising people?
Beyond these reasons, what justification could there be for penalising consenting adults for their sexual preferences?
IS CHOICE RELEVANT?
The court said, “The expert evidence was unanimous that there is no conclusive scientific proof that LGBTIQ people are born that way”. Quite apart from the fact that intersex people (the I in LGBTIQ) are indeed born that way, one could equally say that evidence does not show that gay people are not born that way.
But this is of marginal relevance. True, if you have no choice about the way you are it is particularly unfair that you are discriminated against on that basis.
But the Constitution does not outlaw discrimination only on the basis of inborn, involuntary characteristics.
Dress, religion, political opinion, marital status and, usually, pregnancy are choices. Yet it is against the Constitution to discriminate against anyone because they have one of those characteristics - unless there is an Article 24 good reason.
So why does it matter whether people are born or choose to be gay? When the court said “if they were born that way, they have rights like everyone else” it was totally misguided.
HUMAN RIGHTS ARE NOT A MATTER OF MAJORITY VOTE
What the majority thinks is all right does not need protection in the Bill of Rights. It is the unpopular who need protection.
The unwelcome expression of a view is protected under Article 33, the believer in a religion you preach against is protected under Article 32, the person with albinism is protected perhaps under Article 54 (though this is not quite right since albinism is not a disability) regardless of what you believe about causes of albinism.
These judges know that, too. When they said “the desire of Kenyans, whether majoritarian or otherwise are reflected in the Constitution” they were ignoring the fact that the desire of Kenyans is expressed to be that everyone is treated with respect, equality and for a society in which everyone is included and no-one marginalised.
The writers are lawyers