GHAI: Kenyan, Botswana courts: Gay sex and constitutions

You may have read that the Botswana Court of Appeal has just (on Monday) upheld a decision of their High Court that said the law making it a crime for men to have sexual relations with each other is unconstitutional.

So now eight judges in Botswana have reached this decision. But two years ago, three Kenyan judges reached the opposite conclusion.

JUDGES AND THE LAW

Were the Botswana judges African? Almost all is the answer. The presiding judge in the Court of Appeal was a white man. The others were all African and probably from Botswana. The presiding judge in the High Court was a black Botswanan – and all their High Court judges are local.

Is the criminal law different in the two countries? The answer is a short No. The most important section of the Penal Code is identical in the two countries. Both were based on the same colonial legislation – importing into local law Victorian (19th century) English ideas of morality and law.

Are the constitutions different? To some extent they are. The Botswana Constitution is still largely the British colonial office model when it comes to human rights (quite similar to our old constitution). In other words, ours is more favourable to human rights on the face of it. But there is one important difference that I shall discuss later.

DISCRIMINATION

Both constitutions (like virtually all others) prohibit discrimination. The Kenyan court said that the Penal Code does not discriminate on this issue of gay sex. It says that “any person” commits an offence by having intercourse “against the order of nature”. And “any male person” commits an offence if he commit “gross indecency” with another male. So there was no discrimination — everyone, or every male, was affected.

The Botswana Court of Appeal held that the law did discriminate against gay men. The truth is that while straight men may wish to have anal sex with a female partner, it is much more gay men who are affected by this law. (Indeed straight men and their female sexual partners are just not prosecuted for this).

The fact that the law just says “all persons” does not prevent it being discriminatory in effect. And both constitutions recognise this idea — that something that on the face of it does not look discriminatory may be so in effect. It is called “indirect discrimination”.

The Botswana Court also said that there had been much evidence of just how the law affected gay men negatively. The stigmatisation involved, the mental stress, and in a practical way the reluctance that gay men have to seek medical help (including for HIV/Aids for fear of being prosecuted for unlawful sex) are all evidence of this. The Kenyan High Court heard much very similar evidence.

The Botswana court held that the law violated the rights to privacy and dignity of gay men. No prosecution is likely without prying into the most private aspects of the life of those affected. The law serves only “to incentivise law enforcement agents and others to become keyhole peepers and intruders into the private lives of citizens”. The Kenyan court shied away from making a clear decision on this question.

PUBLIC OPINION AND LAW

An interesting difference between the two cases relates to public opinion. The Botswana court had to dispose of an earlier case that had held the law to be constitutional. That earlier court had suggested that over time public views might change.

The Court of Appeal took the view that public opinion had indeed changed to become more tolerant of gays, and they cited as evidence remarks of three Presidents.

This is very interesting — and rather doubtful. Would we be prepared to assume that what our President says is to be taken as representing the moral and social attitudes of Kenyans?

Indeed, the whole matter of how far human rights should be related to social views is a difficult one. A major reason we have human rights provisions in constitutions is precisely to prevent the prevailing social and political attitudes from being enacted into law, or pursued by government, if they are harmful to rights.

It is to prevent the tyranny of the majority. We accept that child marriage and FGM are undesirable, and that undesirability is backed up by the Constitution. It is not a matter of majority opinion. And how can a court decide what is public opinion? They can’t conduct a public opinion survey.

ARTICLE 45 

This takes us to the key element in the Kenyan court’s reasoning that was used to reach a different conclusion from the Botswana court. This is the presence in the Kenyan Constitution of Article 45(2) which says, “Every adult has a right to marry a person of the opposite sex, based on the free consent of the parties.”

The Kenyan court said that they would assume that the place they could find the views of Kenyan was the Constitution. The situation in Botswana was different. Their constitution is mostly about 60 years old. Social attitudes have changed.

But the question then Becomes — exactly what were those views? What does Article 45(2) say and what does it mean?

What it says is that everyone has the right to marry a person of the opposite sex. It means that a law that prevents people from doing just that would be unconstitutional — unless of course there was a good reason that satisfies Article 24, like preventing child marriage or incestuous marriages.

It implies that no one could object to a law that prohibited gay marriage.

The background to the provision is that in many countries gay sex had ceased to be criminal decades before. But very many people who accepted that change in the law felt uncomfortable about allowing gay people to marry someone of the same sex.

The concern was a sense that to allow this devalued the sanctity of marriage. No doubt there was an element of anti-homosexuality in this view, but it did not mean that people were wanting to prevent gay sex.

Indeed, one might say there was an element of saying: do what you like in your own bedroom, that is not our concern, but we are not yet ready to accept the public commitment involved in marriage.

The Kenyan court treated sexual relations and marriage as if they were essentially the same thing. But that does not seem to have been the view of the drafters.

The Constitution of Kenya Review Commission report says, “The Draft Constitution protects the right to marry and found a family. Some delegates feared that this provision may permit homosexual marriages since the draft Constitution did not specify that marriage can only take place between persons of the opposite sex.

"The [Consensus Building] Group endorsed the recommendation of the Technical Working Group … that the draft should clarify the definition of marriage to prohibit same sex marriages.”

If there had been a desire to say that Kenyan law must not permit gay sexual relation, it could perfectly well have been done. And the Constitution does not actually prohibit same sex marriage.

The Marriage Act says: Marriage is the voluntary union of a man and a woman”. Article 45(2) prevents anyone going to court to complain that this violates anyone’s rights.

Though many people have ‘we come we stay’ marriages, the recent Bill to try to stop mistresses and their children inheriting shows that not everyone thinks that sexual relations are the same thing as marriage.

The Kenyan court was able to use Article 45 to avoid the real issues. They were able to avoid having to decide if there was breach of the right to privacy and dignity.

Since they had already decided that there was no discrimination, they did not have to deal with the careful process for deciding when a limit of a right is justified under Article 24.

But to read the two cases is to bring home clearly how far courts have choices.

(Edited by V. Graham)