The Court of Appeal recently made a historic -- and wise -- decision in asserting that everyone has the right of association.
The Court of Appeal recently made a historic -- and wise -- decision in asserting that everyone has the right of association even on issues that are controversial, misunderstood and emotive. It was a pity that two of the judges dissented from the clear constitutional and humanrights position on freedom of association. From media reports, it appears they focused on the content of the proposed association which is to legally and peacefully advocate for equality for people within the LGBTIQ community, something they disagreed with.
I have not read the judgement, but I have been working on human rights for decades now. Like many Kenyans, I grew up homophobic, given our fundamentalist Christian and Muslim upbringing, before getting a better understanding of the innate diversity and dynamism of human nature. The case brought out three fundamental issues, in the appeal from a High Court decision on the rights to association for the National Gay and Lesbians Human Rights Commission (NGLHRC).
The first is the essence of the right of freedom of association under Article 36 of our Constitution, and also under international law, that by dint of Article 2 of our Constitution is entrenched in our laws and Constitution. Consequently Article 22 of the International Covenant on Civil and Political Rights, Article 8 of the International Covenant on Economic, Social and Cultural Rights, Article 20 of the Universal Declaration of Human Rights and others need to be considered decisions about this right.
The right of association is interesting as it is both an individualand a collective right; it is inherent in individuals who then exercise it collectively. And it is a facilitative right in that it is content-neutral except for the limited restrictions under international law. Thus, so long as an organisation or association is not engaged in violence, and not against national security, it matters not whether we agree with the work of the association. Yes, homosexuality may not be legal currently but NGHRLC focuses on equality for all, prevention of violence and non-discrimination against the LGBTIQ community which are protected rights in the Constitution. It is like starting an association to lift the ban on marijuana. Or to allow anyone to own guns. Or to fight for independence and equality during the colonial era. And it is a preferred way for societies to engage and debate instead of pushing the issues to the margins or underground which only makes things worse.
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All too often it is suggested that LGBTIQ issues are contrary to our African culture. That is hogwash, as Prof Silvia Tamale of Makerere University Law School has consistently demonstrated through research. “African history is replete with examples of both erotic and non-erotic same-sex relationships. For example, the ancient cave paintings of the San people near Guruve in Zimbabwe depict two men engaged in some form of ritual sex…. In Buganda, one of the largest traditional kingdoms in Uganda, it was an open secret that Kabaka Mwanga II, who ruled in the latter half of the 19th century, was gay.
“The vocabulary used to describe same-sex relations in traditional languages, predating colonialism, is further proof of the existence of such relations in precolonial Africa. To name but a few, the Shangaan of southern Africa referred to same-sex relations as inkotshane
(male-wife); Basotho women in present-day Lesotho engage in socially sanctioned erotic relationships called motsoalle
(special friend) and in the Wolof language, spoken in Senegal, homosexual men are known as gor-digen
(men-women) …. The Ndebele and Shona in Zimbabwe, the Azande in Sudan and Congo, the Nupe in Nigeria and the Tutsi in Rwanda and Burundi all engaged in same-sex acts for spiritual rearmament. It was also used for ritual purposes. Among various communities in South Africa, sex education among adolescent peers allowed them to experiment through acts such as “thigh sex” (hlobonga
among the Zulu, ukumetsha
among the Xhosa and gangisa
among the Shangaan).” Closer home, the Borana call homosexualsmiddis
Our homophobia is the direct result of the twisting of African culture by Christianity and Islam, both foreign ideologies and culture, which believe in their superiority over other cultures hence their proselytisation. And it is propaganda from far-right American evangelicals that is fueling the homophobia in our societies today.
The third issue is the one of tolerance. It is baffling why we are so threatened by LGBTIQ issues. But why do we care if our neighbours, friends and relatives are living in a same-sex relationship? How does that affect us? And yet we are the same people who welcome thieves and killers into our churches and accept their millions! Every society will have heterosexuals, homosexuals and others. But whatever any human being is, should never reduce their humanity. After all, we all, man and woman, are created in the image of God, whatever our sexuality.
- The writer is former KNCHR chair. [email protected]
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