Interpreting justice in the space of controversy

Hi Eric

The Supreme Court ruling allowing members of the LGBTQ community to associate has created a lot of buzz in the country. I am curious to know why the ruling was made given that the community is not accepted here in Kenya.

Dear concerned reader,

This conversation does not ignore the healthy discussions being held on various virtual and physical platforms owing to the interest generated by the Supreme Court of Kenya decision of the 24th of February 2023, directing the Non-Governmental Organization Coordination Board to register the National Gay and Lesbian Human Rights Commission (NGLHRC).

This case is a decade old as it dates back to 2013. It is an opportunity for the country to facilitate and experience necessary legal ventilation, across and amongst different people and institutions, as part-mechanism of pointing out what the law provides, but importantly to develop an understanding of how justice is interpreted in the space of controversy.

Any and every issue regarding Lesbians, Gay, Bi-sexual, Transgender and Queer, shortened and accepted as LGBTQ tends to draw a lot of conversational vitriol and name-calling, both in private and public spaces. This column deliberately excludes the Intersex Persons in this conversation, because the law has been and continues to be reformed to accommodate them.

Their major concern as to sexual identity being foundational for them to access and utilise government services has partially been addressed by law since the “I” sexual marker was used to count them during the national census of 2019.

The debate that rages on is about inclusion and discrimination besides the related inequalities and inequities, from which certain subjective conclusions and positions are drawn, depending on which side of the divide one speaks and approaches the matter. The pro-LGBTQ groups and communities often cite systemic discrimination and violence besides the desire for dignity as the motivation for seeking justice.

Their justification is assigned to Articles 27 and 28 of the Constitution, in addition to Articles 2 (5) and 2 (6) which ring fences application of provisions found in several other international legal instruments that protect and promote human rights.

By the mantra of leaving no one behind within the realm of Sustainable Development Goals (SDGs) their (LGBTQ) assertions suggest the fullness of Article 27(4) to include sexual and gender orientation, as an addition to race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth, as grounds for non-discrimination. The Supreme Court used the same wisdom.

Societal fidelity

Those opposed to the agenda, concept and relationship protocols of LGBTQ consistently call for societal fidelity to a natural way of doing things sexually. They believe and propagate sex as a mutual heterosexual, male to female and vice versa engagement.

In their arguments, they cite the criminality associated with same-sex marriage, because Article 45 (2) of the Constitution espouses, the union of marriage as the right to marry a person of the opposite sex.

Additionally, the Penal Code offense provided for in Section 162 of the Penal Code, where it criminalises carnal knowledge obtained against the order of nature, applies in human-to-animal interaction. At the point at which it involves two or more human beings, it reverts to an offense under the Sexual Offenses Act. While this stands as the law, it is difficult to enforce.

Unless circumstances emerge where a complainant or victim, comes forth alleging coerced sexual intercourse between them and another of their ilk, it remains an offense whose applicability may only be realised in the discourse that protects children from sex pests and paedophiles.

The concerns being pursued by the anti-LGBTQ movement and individuals are already criminalised within statutes. It is clear according to Section 3 of the Marriage Act in pursuance to Article 45 (2) of the Constitution, that no registrar of marriage can even entertain an application of same-sex marriage. Such an application will be dead on arrival. There is also an assumption that sexual intercourse happens between persons of the same gender or sex in the LGBTQ community, an issue that this column has no capacity to ascertain.

In this context, therefore, those opposed to the protocols and way of life of the LGBTQ community may take refuge in what the legal practitioners refer to as ex injuria jus non oritur. This means that a legal right or entitlement cannot arise from an unlawful act or omission. When a fact arises from an illegal or unlawful acts or omissions, it cannot form the basis of law or legal rights, even if it is public or prominent.

The LGBTQ community is protected by the Constitution under the latitude of the Bill of rights, as human beings. The four cardinal principles of human rights as perpetuated by the Universal Declaration on Human Rights (UDHR), and captured in the Kenyan Constitution, are gender and sex blind.

The rights are universal, indivisible, interdependent and inalienable. The law does not breathe life into rights on the basis of gender or sexual orientation, not unless the situation demands to allocate rights, duties and privileges in accordance with gender or sexual identity. An example that may suffice is how courts and law apply themselves to the issue regarding child support and maintenance when dealing with girl children and those of very tender ages, where it is expected that the mother, in this case, a woman stands a higher probability to acquire physical custody. It seems this debate has just begun.

The Member of Parliament representing Homa Bay town, Mr. Peter Kaluma is ready on record to publish and present the LGBTQ bill in the August house, anytime this year. Even then, it should be at the back of our minds, that some of the provisions in the Penal Code, that have criminalised certain engagements claimed by the LGBTQ communities, which align to the right of choice, opinion and belief could be declared unconstitutional, having injured the provisions of Article 32 (1) which provides for every person’s right to freedom of conscience, religion, thought, belief and opinion, alongside Sub-Article (4), that emphasizes no person to be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]