Members of the gay community have had big losses recently. The first blow was the death of the acclaimed writer, Binyavanga Wainaina, who was gay. Then there was last week’s High Court judgement which dismissed a petition that sought to decriminalise same sex unions. In January 2014, Binyavanga went public about his gay status, with his already-high profile as a writer serving to give huge publicity to his declaration. In a country where homosexuality is only whispered about, Binyavanga’s action came to be viewed as courageous even though he also attracted condemnation.
While members of the gay community have previously used litigation as a means of defining and advancing their interests, the case leading to last week’s judgement was the subject of unprecedented public attention. That attention was increased by successive postponements by the High Court of the judgement date.
Litigation on gay rights in Kenya is having the effect it had in Uganda, where an official crackdown against members of the gay community led to arrests and arraignment in court for petty offences which, although seemingly unrelated to their gay status, were a form of harassment for being gay. The court cases had the effect of mobilising Uganda’s gay community into an identifiable human rights movement. Similarly, even though the gay movement lost the case last week, they have now gained a level of visibility in Kenya that they have never had before.
The gay movement is also now following the same path that the regular human rights and democracy movement followed in Kenya. With the streets proving unpredictable and dangerous, the human rights and democracy movement took to litigation as a means of confronting one-party dictatorship in Kenya. At that time, the courts were mostly hostile and would contrive ways of avoiding engaging with the issues brought before them. However, the losses in court did not matter and had the effect of keeping the movement mobilised and active.
Similarly, the gay movement has had few victories through litigation. The one notable victory, a judgement in which the Court of Appeal was prepared to widen the meaning of the word “sex” to include “sexual orientation” as one of the prohibited grounds of discrimination under the Constitution, was not followed through in last week’s High Court judgement.
Because courts of law were so hostile to human rights activists in the 1980s and 90s, the meaning of an engagement with them evolved over time. While courts were initially viewed as helpful arenas through which political struggle could be advanced, the judiciary eventually evolved into a symbol of oppression, and, therefore, a legitimate target of activist attacks.
Following recent reforms, the courts of law are now largely viewed as productive arenas through which certain struggles can be advanced. The decision by the gay community to go to court, rather than to barrack Parliament, was largely informed by this view.
In its judgement, however, the High Court was conservative, even reactionary and, for example, used the argument that the Constitution allows only opposite sex marriages, as a basis for its finding that the popular view of the people of Kenya was against protecting gay rights. This argument failed to recognise the fact that the judiciary is a countervailing actor, playing the often-difficult and often-unpopular role of protecting minorities against whom majorities are often a threat. Some of the worst abuses target groups disliked by mainstream public opinion, such as gay people. Given the high level of homophobia, a referendum to kill all gay people in Kenya would probably obtain the support of the majority. Would that be a valid basis for carrying out such an act? If confronted with a case under those circumstances, would the judiciary say, as the High Court did last week, that the proposed action is valid because it has the support of the majority?
Although they have lost for now, it is not unlikely that the gay community will keep knocking on every door, using the same tactics that others before them have used. Some perspective may help with regard to how the country might consider reacting to the agitation by the gay community. The British wrote Kenya’s penal law, which was first applied in India and then widely exported to many of its former colonies, including Kenya. The standpoint of Kenya’s Penal Code regarding sexual offences is what prevailed in in the United Kingdom at the time that the law was written. While the UK has since reviewed its position regarding same sex relationships, the position in the former colonies, and the rest of Africa, has largely remained unchanged. Out of the 53 African states, homosexuality is a crime in 38 of them, including Kenya. Only South Africa prohibits the discrimination of homosexuals. Life still goes on in the 15 African countries that have not criminalised homosexuality.