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.
The law permits all that which it doesn’t prohibit. Where a statute conflicts with the Constitution – and more so the Bill of Rights – that statute shall be null and void to the extent of the inconsistency. The judges ruled that repealing Sections 162 and 165 would conflict with Art 45(2) of the Constitution and open the door to same-sex marriages. Art 45(2) provides that “[E]every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.” The article doesn’t “prohibit” same-sex unions. Rather, it “permits” persons of opposing genders to marry. The Constitution didn’t use the “prohibitive” language “only persons of the opposite sex shall be entitled to marry.”
The makers of the 2010 Constitution – of which I was one at Bomas – were not short of language. Some delegates wanted an inclusion of explicit language “prohibiting” same-sex relationships. Their wish wasn’t granted. As such, Art 45(2) cannot be read – as the judges did – as a prohibition of same-sex relationships and a justification for the refusal to repeal the offensive sections of the Penal Code. It’s the Penal Code that must succumb to the Constitution, not the other way round, as the judges seem to imply. Their task was to establish the constitutionality of the relevant sections of the Penal Code, not to go on a fishing expedition to save Sections 162 and 165 of the Penal Code.
Let’s demonstrate the backwardness of these laws. The sections criminalise “carnal knowledge against the order of nature.” This British colonial-era language – so-called sodomy laws – is historically understood to mean a prohibition of same-sex relations, especially among men. A violation can attract a maximum penalty of 14 years in jail. It’s an unconscionable law that violates Article 27 – the Equal Protection Clause – of the 2010 Constitution. Art 27(1) is unambiguous. It provides that “(E)very person is equal before the law and has the right to equal protection and equal benefit of the law.” What part of this didn’t the judges comprehend? A first-year law student knows that this is an iron-clad protection against discrimination.
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Further, Art 27(2) states without equivocation that “(E)quality includes the full and equal enjoyment of all rights and fundamental freedoms.” Art 27 when read with Art 2 (Kenya’s human rights obligations under international law], Art 10(2)(b) (equality, dignity, non-discrimination, human rights), Art 19 (democracy), and Art 20 [requiring courts to adopt an interpretation that favors basic rights) make it clear the any form of discrimination is manifestly suspect and unconstitutional. Art 28 of the Constitution provides that “(E)very person has inherent dignity and the right to have that dignity respected and protected.” The obligatory language is “every person” not “some people.” Every person includes gay people. There’s no wiggle room here, even for the hard of hearing.
Finally, Art 20(3)(b) of the Constitution closes the book on the unconstitutionality of Sections 162 and 165 of the Penal Code. It instructs and requires the courts to “adopt the legal interpretation that most favors the enforcement of a right or fundamental freedom when applying the Bill of Rights. This is a fiat, not a suggestion. The High Court ruling is out of step with the law, facts, and the science. Being gay is a fact of biological existence for millions of Kenyans. The courts need to enter the modern age.
- The writer is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua.