They have become extremely predictable, taking one step at a time, but each step ever so sure. The new moralists are so determined to redefine our values and to blunt our conscience that they will not relent. Back in 2015, the Gays and Lesbians confronted a three-judge bench at the High Court with a case contesting the refusal by the NGO Board to register their organisation. The learned judges ruled that the LGBT have a right of association under the constitution – thereby extending a major concession to the group.
I argued then in this space that the seemingly small concession was akin to the nose of the camel gaining entry into the Arab’s tent. As one US Judge once quipped concerning such a ruling, “it permits the camel's nose of unrestrained irrationality admission to the tent.” And indeed, the camel is determined to gain full body access into the tent. In what is clearly a well coordinated effort, the fight to legalise homosexuality in Kenya appears on course. At the forefront of this battle is one Eric Gitari, a lawyer and Executive Director of the National Gay and Lesbian Human Rights Commission (NGLHRC). According to Gitari, his team has been using what he calls “strategic litigation” to gain space for homosexuality.
He boasts that since 2012, “we have noted a growing appreciation that the courts can deliver justice.” For example, he says, in 2013, it was the Eric Gitari vs. the NGO Coordination Board case; in 2015, two legal aid clients agreed to be represented at the High Court; and in April 2016, six individual activists put their names on record enjoining the decriminalisation petition against the anti-gay sections of Kenyan law. Now, there is yet another case before the courts pursuing the same agenda.
What is interesting is that the key instrument being used to push for the legalisation of homosexuality is the 2010 Constitution. It was exactly for these reasons that the Church raised concerns about provisions in the then proposed constitution, which appeared to undermine the natural values that Kenyans cherish and uphold. It was the Church’s view that these and other matters (so called 20 per cent poison) needed to be resolved before presenting the document to the vote in the referendum.
Unfortunately, the Church was vilified by proponents of the new Constitution for myopic interpretation of the noble laws. They argued, for example, that homosexuality was expressly outlawed in the document. 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, through Parliament, and more recently, the courts of law. It is turning the country into a hotbed of liberalism – where anything and everything goes.
Values are outdated
In an interview with the International Freedom of Expression (IFEX), Gitari observes that the 2015 High Court ruling in Kenya has had significant impact in other nations of Africa. For example, it became an authority that was cited severally in Botswana when their Court of Appeal allowed LeGaBiBo (Lesbians, Gays and Bisexuals of Botswana) to register. It was also used as an authority in Uganda by SMUG (Sexual Minorities Uganda) who had gone to court to seek registration. In other words, our courts are becoming the reference point for what a majority of Africans would readily frown at.
Some have argued that what two consenting adults do in their own privacy should be of no public concern. Really? Then why go to public courts to seek legal protection for private activities? Others reason that African and religious morality and values are outdated and it is high time we embraced a more progressive perspective to life. Then why do we have a whole chapter on values and ethics in the Constitution, and why acknowledge the supremacy of God of all creation in the Preamble of the same document?
Perhaps it is time we Kenyans, and especially the various organs of government, came out clear: is homosexuality legal in Kenya or not? Have we as a society accepted that men and men, and women and women are free to have sexual intimacy? If Yes then let be Yes, if No then let it be No! There is no use playing around with legal jargon and technical arguments in the law courts, on a matter that should be plain and straight forward. Darkness can never become light simply because the court has declared it so. Ama namna gani?