Court erred in allowing registration of gay organisation

In a 1983 conveyance case, the complainants had gone to court because the defendant had sold them a house without disclosing that the house’s previous inhabitants had been brutally murdered ten years earlier.

Ruling on the Reed V. King Case, the judge was not only irked by its triviality, but more so by the eventual consequences of granting the prayers.

The judge thus remarked in his ruling, “The paramount argument against an affirmative conclusion is, it permits the camel’s nose of unrestrained, irrational admission to the tent. If such an ‘irrational’ consideration is permitted as a basis of rescission, the stability of all conveyances will be seriously undermined.”

The case was thus dismissed. Standing at the door of his master’s tent in a cold winter night, the camel peeped inside and pleaded with the Arab if it could be allowed to merely shelter its nose within the tent. When the kind master took pity on the poor animal and agreed to the camel’s request, the camel next pleaded for its head.

And so went the pleas until the camel was completely inside the tent. But due to the constriction of space within the tent, the camel proceeded to kick its master out of the tent. The camel’s nose is thus a well-known metaphor for a situation where the permitting of a small, seemingly innocuous act will open the door for larger, clearly undesirable actions.

When in 2010 the Church raised concerns about provisions within the proposed Constitution that appeared to undermine the natural values Kenyans cherish and uphold, they were vilified for myopic interpretation of the noble laws.

One government minister even went ahead to advise Church leaders to seek sound legal counsel for better interpretation of the provisions. But no sooner had the document been signed into law than various so-called human rights groups embarked on a systematic campaign to legalise some of the illegalities. Consequently, abortion, homosexuality, religious, and other such matters that the Church had raised have been finding their way into society, Parliament, and more recently, the courts of law.

It came therefore as no surprise that a three judge High Court bench was recently confronted with a case in which the Gay and Lesbians were contesting the refusal by the NGO Board to register their organisation. The learned judges in their ruling argued that the Gays, Lesbians and Transgender have a right of association under the Constitution; thereby extending a major concession to the group.

What is interesting is that while seemingly small concessions are being made in an apparent effort to “accommodate minorities,” one cannot fail to smell the nose of the camel.

As an insightful New York Times writer quipped in similar circumstances way back in March 1878, “It is the humble petition of the camel, who only asks that he may put his nose into the traveller’s tent. It is so pitiful, so modest, that we must not relent and grant it.”

And indeed the needs of the “the minority” have been presented as so pitiful and modest that we must not relent and grant them. To do otherwise is to appear to be not only inhuman but utterly uncivilised. What is of concern, however, is that these needs of “the minority” are beginning to trample over the wishes of the majority, in a manner reminiscent of the Arab being thrown out of his tent.

It is instructive that Rev Michael Kimindu — a former Anglican priest, but now president of the Other Sheep Africa, a gay rights organisation — is elated.

“This is what we have been crying for,” he is reported to have said of the ruling. “It is the beginning of the journey towards freedom. We will now start asking: What happens when two people who are gay want to have a baby or want to go to church to marry?”

Very pertinent questions that I believe our learned judges may soon have to address as a consequence of their ruling.

The critical issue at hand is whether or not homosexuality is legal in Kenya.

Quoting Article 36 of Kenya’s Constitution, the judges argued in their ruling, “Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.”

Hopefully, by “association of any kind” the judges meant associations whose pursuits are legally permitted.

Otherwise, the courts may as well order the registration of the Association of Drug Dealers of Kenya, or the Coalition for Rapist of Kenya. Unacceptable, we may argue. Likewise, in the case at hand, the paramount argument against an affirmative conclusion is, it permits the camel’s nose of unrestrained irrational admission to the tent. If such irrationality is permitted, the sanctity of societal values will be seriously undermined.