Court should have left gay case to MPs

Kenya’s social character and its quest for advanced development reminds one of an old computer that keeps receiving updates from the West, without the option of saying yes or no.

This state of affairs is as a result of poverty, lack of strong independent institutions, subservience to the western world’s imposition of their world view, the effects of colonialism... The list is endless.

The Western world on the other hand behaves like the Roman Empire, teaching the rest of the world the art of civilisation.

The latest update in Kenya is a court decision that the freedom of association provided for in the Constitution applies to an association of homosexuals and closely-related groupings.

Our considered view is that the court did not have a chance to interrogate the issue and the philosophy driving it, because the thinking had been done elsewhere and all that was left for it, was to just import the persuasive precedent.

Woe unto them who may have tried to act differently.

For the whole western world would have descended on them, baying for their blood and maybe even asked the JSC to vet them afresh for not being judicious!

If you doubt that, ask President Museveni and a Malawian High Court judge.

While we may not remember the exact circumstances, the case of the Malawian judge was that the whole western world, media, commentators, political analysts including none other than the Secretary General of the UN himself, paid the country a visit to persuade and push for the release of a gay couple after they were found by a court in breach of a law passed by the Malawi parliament.

That was telling. Be very careful, this movement makes child’s play of sovereignty. The world we inherited from our forefathers has dramatically changed.

It is not rocket science to predict that the next phase of the movement, which has gathered pace running down a steep hill, is to follow the American Federal Supreme Court’s decision that homosexuals have a right to found a family and that the concept of family under our Supreme law needs to be interpreted more ‘widely’.

Even if our Constitution expressly states that a family is composed of a man and a wife, in the homosexual world, one of the individuals is a ‘wife’ and the other is a ‘husband’. As such, sorry to our Christians and other naysayers, the Constitution is most likely to be interpreted to mean it is not opposed to such marriages.

However, the recent decision in Kenya was wrong because the criminal law of Kenya, like the case of Malawi, still criminalises homosexuality as an ‘unnatural’ offence. Like a contract that is premised on illegality, the Constitutional Court proceeded to deal with it on a wrong footing.

Secondly, it could be true that the only place such an organisation can receive justice is in the courts because under the parliamentary principle that majority have their way, they might never get that majority to attain a favourable legislation.

However, the concept of family and the constitution of the family has been legislated for the longest time. The court is not the proper forum for determining what a family should be. It is a legislative act which the court should stay clear of. Otherwise, the courts will soon be conducting marriages in the name of court proceedings. There was a judge in the 70s who actually did that.

When general philosophy removes deity from the equation, even when expressly stated in the Supreme law and starts to believe it is an end in itself, then there can only be one conclusion – that it is not accountable to anybody.

Yet that should not be the case. The recent discovery of ash around what was Sodom will haunt the nations of the world for adopting the weird western philosophy, which is letting the East start to populate the West.

Among all the other animal species, none has been known to follow its own gender, and the fact that the Homo sapiens have begun to think they have ceased to be animals is very strange indeed.

If the nations of Africa are strongly opposed to it, their position should be ventilated at the AU level, failing which they will be individually subdued.

The courts have already gone too far. The next step would be to have it as a referendum question, but we wish to draw the attention of our judges to what Holmes, in his Learning and Science, avers:

“The past gives vocabulary and fixes the limits of our imaginations; we cannot get away from it.

There is, too, a particular logical pleasure in making manifest the continuity between what we are doing and what has been done before. But the present has a right to govern itself so far as it can; and it ought always to be remembered that historic continuity with the past is not a duty, it is only a necessity”

Our cultures and practices cannot be cast aside just like that. Our judges cannot and should not make decisions for the pleasure of others who have no respect for our past and indeed the present. They should draw inspiration from acceptable principles.

We expect our judges not to yield to transient sentiment and inconsiderate benevolence.