This is the dilemma I found myself in as I read the individual Judges positions on the recent LGBTQ ruling by five-judge bench of the Court of Appeal
Benefit of doubt is one of the things I try to extend rather liberally when dealing with fellow human beings – because there is always another perspective that I may not be privy to. And yet, when actions and activities seem to follow a particular pattern or trend, it becomes extremely difficult to extend such a benefit. This is the dilemma I found myself in as I read the individual Judges positions on the recent LGBTQ ruling by a five-judge bench of the Court of Appeal. Certain Judges seemed to have followed a rather predictable path. It therefore became very difficult to believe that these learned Judges had simply reviewed the case before them, considered the facts of the matter, taken into account its social context, and arrived at a purely objective judgement based on the prevailing laws of the land.
In the March 22 judgement, the Court of Appeal, by a 3-2 majority, upheld a 2015 High Court ruling that allowed the petition of Eric Gitari to register an LGBTQ organisation with the NGO-Coordination Board. What is so unfortunate about this series of rulings is not so much the concession it gives to the gay movement in the nation, but rather the negative impact it portends on the moral values of the Kenyan people.
Back in 2015, when the three High Court judges ruled in favor of the LGBT, I argued in this space that the seemingly small concession allowed the camel to put its nose into the Arab’s tent, and that the beast would soon throw the Arab out. Sadly, it is happening. The new moralists, in their dogged determination to redefine our values and to blunt our conscience, appear to have captured the Judiciary as their weapon of destruction. This has been successfully used in other jurisdictions and the script is being played right before our eyes.
Commenting on the said Court of Appeal judgement, Hon Jennifer Shamalla (MP, Special Interest) captured the hearts and minds of many Kenyans when she declared, “I am astonished that courts entrusted with judicial authority under article 159 of the Constitution and who are also guided by the principle of protecting and promoting the Constitution, can purport to make a decision in outright contravention to the Constitution of Kenya.”
It is a fact that the spirit of the 2010 Constitution was to outlaw gay activity in Kenya. Opinion polls conducted at the time consistently showed that Kenyans deemed these acts to be repugnant to our culture and morality. Likewise, the “Yes” team, in their effort to persuade people to vote for the draft, consistently argued that the Draft Constitution did not allow for homosexuality. Therefore, for any Judge to use clever language to allow for the organised practice of homosexualityis to trample the very aspirations of the Kenyan people as then expressed and promised in the Constitution.
Defend traditional family
When Kyrgyzstan was faced with a similar situation, the matter was taken to the representatives of the people in Parliament. In October 2014, Parliament overwhelming voted 79-7 to pass a Bill banning what it termed as gay propaganda. Though strongly opposed by the United States and condemned by human rights bodies as homophobic, Parliament explained that the law did not aim to trample on anyone’s rights, but “to protect and defend traditional family, human, moral and historic values of the people of Kyrgyzstan.”
Here were a people who understood their mandate as representatives of the people and custodians of their socio-cultural values. In our case, however, while one of the judges passionately argued that “overturning the impugned judgment would undermine the gains made over the years in promoting, protecting and building a culture of respect and tolerance of differences that abound in the society,” it is sad that no similar passion was expended towards preserving and protecting our historic cultural and religious values.
Values are the filters of life and without them, everything falls apart. As a nation, it appears that we are at the crossroads on homosexuality. That is why we must not totally rely on the legal system to define for us how we live and relate with each other. It is time we granted each other the benefit of doubt on our diverse positions. Let’s engage in a robust discussion to demystify homosexuality and put it to rest once and for all.
- The writer is the Presiding Bishop of Christ is the Answer Ministries. [email protected]