Court ruling on gayism is out of step with law, facts, the science

Lawyer Paul Muite at Milimani Court during the ruling. [George Njunge, Standard]

Last week will live in infamy for Kenya’s jurisprudence and the liberal rights idiom embedded in the 2010 Constitution. In the same week that celebrated author Binyavanga Wainaina, the most prominent openly gay Kenyan died, the High Court ignominiously refused to repeal Sections 162 and 165 of the Penal Code that criminalise same-sex relationships. Let’s be clear – these sections of the law are a colonial relic imposed on Kenya by the British. The failure to decolonise the Penal code by striking down the offending and prima facie unconstitutional provisions shows Kenya’s judiciary has not understood and internalised the logic and philosophy of the 2010 Constitution. The Court of Appeal must pick up the mantle and reverse the lower court.

The High Court’s decision and legal reasoning are warped. Either the judges are not widely read, or haven’t kept up with jurisprudence. It’s inconceivable any “learned” colleagues would make such rudimentary errors of constitutional and statutory interpretation of a matter so basic to liberty and freedom. Otherwise it boggles the mind why they reasoned like legal Neanderthals in a matter so plainly unjust, discriminatory, and violative of the central tenets of the 2010 Constitution. Let me state the bottom-line constitutional and legal interpretation principle at state upfront – a right is deemed to be permitted unless it’s explicitly prohibited in a liberal democratic constitution. The judge interprets the Constitution to expand liberty and freedom, not to deny or restrict them.