On gay issues, Supreme Court has left us in the wilderness

The uproar stirred by the Supreme Court ruling on the right of gays to associate was expected.

Back in 2002, when the first draft of the new constitution was released, inclusion of the rights of homosexuals drew an almost similar ire. In fact, the battle over the twin issues of abortion and homosexuality contributed significantly to the resounding defeat of the document at the 2005 referendum.

In 2010, the document survived only because the drafters used cunning language to camouflage the real intents of the articles on the family. Furthermore, politicians - having interest only in matters that concerned them - deceived Wanjiku that these issues were minor and would be addressed once the Constitution was passed. However, no sooner had the Constitution been promulgated than proponents of these hideous agendas came from the woodworks to claim their stakes. It has been a battle ever since - especially in Parliament - to fend off predators of our morals. Thankfully, the people's representatives have been vigilant and firm in safeguarding values and customs of the people they represent.

The Executive has likewise come under pressure to conform. In 2015, President Kenyatta was confronted point blank by the visiting US President Barack Obama to state his stand on gay rights. It was with Solomonic wisdom that the President deflected a potentially embarrassing moment with his high profile guest. He argued that with the pressing economic and social needs of Kenyans, gay agenda was of little value and therefore a non-issue.

President Ruto likewise had his day of reckoning during a CNN interview in September 2022, to declare his stand on rights of the LGBTQ community. Responding to the sharpshooting Christiane Amanpour, the President was categorical, "I am very clear that we respect everybody and what they believe in, but we also have what we believe in, and we expect to be respected."

And responding to our own Supreme Court ruling on right of the LGBTQ to form an association, the President once again declared that legalising homosexuality is not in line with our national and cultural values.

What is becoming clear is that on preservation of our national values and customs, the Judiciary is proving to be the weakest link. It is becoming the gateway for importation and entrenchment of foreign ideologies. This has been demonstrated through several previous rulings on controversial matters.

What is unfortunate is that there seems to be some judges who - for reasons best known to them - are so determined to impose these foreign practices upon Kenyans, that they seem to care little about their own professional reputation. This might explain why three senior-most judges could set out on what was obviously a fishing expedition to find basis for legalising an illegality.

Whereas I am not a lawyer, I am familiar with the basic structure of sound scholarly arguments - which I believe readily apply to legal propositions. In higher order thinking, a good argument should have a foundational premise, a supporting premise, a rebuttal, before reaching a conclusion. If the foundational premise is weak or false, the whole argument is dead. Just like in maths, any number - no matter how large - multiplied by zero, is zero.

Furthermore, without a strong supporting premise, the argument is dogmatic; and without a rebuttal, arguments remain myopic.

In the matter before the court, one would imagine that the fundamental premise of any argument was the legality of homosexuality in Kenya. Once the judges ascertained that the practice remains outlawed - as they all indeed acknowledged - then no amount of legalese could save the situation. The best they could have done was to advise Parliament to repeal the "offending" Act and bring it into conformity with the Bill of Rights.

Reading Justice Ouko and Justice Ibrahim's arguments, they made rational sense. As for the majority, one could not help but wonder whether they did not start from a pre-considered position.

In preaching, we call it deductive hermeneutics - using the Bible to say what you want. It may be entertaining, but leaves the listeners in the wilderness. That is where the Supreme Court has left us - in deep wilderness, in the territory of Sodom. Who will save us!