Former Chief Justice Willy Mutunga says the State has a responsibility to protect and respect gay community rights in the country.
Speaking during an interview on Spice FM on Friday, November Mutunga said Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) groups are faced with unique vulnerabilities including violations of their human rights calling for their inclusion in society.
“If your daughter or son comes and tells you they are gay, will you throw them out of the house? Are you going to deny them school fees? Will you be happy if they are brutalized by other people who think this shouldn’t happen or landlords who will tell them they can’t live here? It now becomes a question of humanity,” Mutunga posed.
His statement came after President William Ruto stated in an interview with CNN that gay rights are not a priority for Kenyans.
“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 for what we believe in,” Ruto told CNN’s Christiane Amanpour in an interview on September 7, 2022.
He added, “We do not want to create a mountain out of a molehill, when it becomes a big issue for the people of Kenya, the people of Kenya will make a choice.”
In 2020, the Court of Appeal upheld the decision of the High Court which had allowed gays and lesbians to form a non-governmental organization to champion their rights.
In the ruling, a five-judge bench comprising of Chief Justice Martha Koome, Justice Phillip Waki, Asike Makhandia, Justice Daniel Musinga, and Roslyn Nambuye turned to the Holy Bible for divine interpretation where they displayed their societal conservatives and pragmatists.
The scale of justice leaned towards the homosexuals’ side as Justice Phillip Waki threw his weight against two judges – Martha Koome and Asike Makhandia decision that LGBTs have a right to associate.
On the minority side, Justice Daniel Musinga and Roslyn Nambuye leaned on the conservative thought that although the NGO in question ought to advance the rights of homosexuals, theirs was a choice which was not protected by the Constitution and the laws enacted by Parliament.
The matter is still pending determination at the court of Appeal.
Dr Mutunga, a human rights activist, acknowledged that while judges turned to the Bible for interpretation, it was prudent for them to also seek the voice of religious organizations.
"This is a faith issue, and faith is very important to people. If the courts are to hear these cases, they must listen to both sides' arguments without bias. You must listen to religious organizations because they are the most vocal on the issue," Mutunga observed.
"Even as the judges deal with it, it is ultimately a political issue because you still have to get people who believe LGBTI is a sin to accept they do not own God and are not supposed to judge people, which is a struggle in my opinion."