Why Kenya is not Uganda: The Homophobic Deception

Public lie or private life?

Kenya is not Uganda. We have a potent constitution, unlike Uganda (read Museveni Private Property) where there is hardly any operative law, save for taxation laws. Uganda has a failed Constitution, and that is why it legislates even on matters of morality. It is sad that our National Assembly intends to push their idleness to this debate, instead of legislating on matters  of national importance . We shall soon see an "anti-cheating pastors Bill" in the wake of such immorality. Or an "anti-Mavuno Youth Bill." Let us get our priorities right.

But there is hope: by our Constitution alone, any move to ratify anti-homosexual laws is rendered unconstitutional. This piece is basically an insight on constitutional protection of Gay and Lesbian members of the society. Please note that the information is predicated upon robust research, and is nonetheless a personal opinion whereof any positive criticism is open to.

In Protection of Dignity for Social Justice

Human dignity: Fundamentals

Article 10(2)(b) of the Constitution of Kenya: "The national values and principles of governance include ... human dignity, equity, social justice, inclusiveness, equality, human rights [and more importantly] non-discrimination." This cannot be overemphasized. Human dignity involves treating every person with honor or respect. Gays and Lesbians have a that innate right to be valued and receive ethical treatment, and this clause of the Constitution promotes this stance. Human dignity is a fundamental value that must be inculcated in our people. The homosexuals ought to be respected and allowed to interact freely, without making them feel worthless and unaccepted.

Article 19(2): "The purpose of recognizing and protecting human rights and fundamental freedoms is to [inter alia] preserve the dignity of individuals ...and to promote social justice." The dignity of the individual is core in the human rights realms. Social Justice is basically enshrined to enable all members to pursue their goals and attain their fullest potential, their race, sex, age, and even sexual orientation notwithstanding. Article 28 reverberates this position in this way: "Every person has inherent dignity and the right to have that dignity respected and protected." Read that again.

Constitutional Interpretation

Article 20(3)(b): Courts required to "adopt the legal interpretation that most favours the enforcement of a right or fundamental freedom" in the application of a provision of the Bill of Rights. Rather than be perceived to limit a right, the interpretation of the Bill of Rights is to be made in such a broad and liberal manner so as to encompass as much institutional space for enjoyment of rights as possible. This is articulately captured in Article 259(1)  of the constitution, which demands that it be interpreted in a manner that—

• promotes its purposes, values and principles;
• advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;



Good laws grow with the society

• permits the development of the law.

As such, interpretation of the Constitution ought to be cognizant to the development of the society, such as the gay and lesbian rights, technology, inter alia, which were not present in the Precambrian era. This interpretation is one recognizing that a Constitution is a living document, and grows with the societal needs and demands, rather than adopt an obdurate position that suffocates development of the people. Such obstinacy is indeed not healthy for jurisprudence.

Limitation of Rights

Article 24(1): "A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors" Derogating the right of homosexual persons from associating (Freedom of Association in Article 36) or even forming quasi-matrimonial unions is unfounded constitutionally. Pause...

Equal Protection of the Law

Equality in Law

Article 27(1): Every person is equal before the law and has the right to equal protection and equal benefit of the law. Article 27(2) provides that equality includes the full and equal enjoyment of all rights and fundamental freedoms. Articles 27(4) & (5): provide that the State [and any person] shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Article 259(4)(b): the word "includes" is to be construed to mean "...includes, but not limited to." This list is thus not exhaustive, and given an interpretation hereinabove referred to, then sexual orientation is indeed a ground against which no discrimination should be accorded. Basic premise: no discrimination. No law enacted in violation of this clause can stand the threshold of constitutionality (thanks to Article 2(4) that is our make-shift supremacy clause).

Same Sex Marriage

Same sex marriage

In view of marriage, Article 45(2) provides as follows: "Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties". It gives the right, but does not prohibit a choice not to exercise this right. Every citizen, for instance in Article 43 has a right to adequate food of acceptable quality (see sub-clause (c) thereof). Will it be offensive for someone to partake of inadequate food of unreasonable quality? If the Constitution grants a right to proper housing, a person has that right, but it does not mean that the freedom to choose poor housing is precluded. I wonder if we are getting the point here... If you have two doors, and you have the right to enter through Gate A, you are not prohibited to enter through Gate B, are you? That is the point!

Unlike the Bomas Draft Constitution (2005) where Article 50(3) was clear that 'A person shall not marry a person of the same sex,', this Constitution does not make such prohibition. Look at how abortion was dealt with in Article 26(4).

Various Clauses' Analysis

Article 31: "Every person has the right to privacy...." Let people enjoy their private lives privately. Public lie or private life? Enough said...  Article 36 states that "Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind." As such, the Gay and Lesbian Coalition of Kenya (GALCK) for instance, should be recognized and protected like Maendeleo Ya Wanawake Organization (MYWO), as it is one such association that the gay and lesbian members of the society can join. And so can they form any association, by operation of this constitutional provision.

Let us live and let live. I am pushing the agenda for equal protection. Public lie or private life? Let people live their lives to the fullest, as long as the same does not infringe on your space. Kenya is not Uganda: we have a Constitution. We have reason and a conscience.

MISSION TRANSITION

THIS IS OUR TIME: LIVING UPON THE FULFILLED PROPHESY

Transitional Song: Going, going...gone! Raila, Ruto and Uhuru

“I’ve been to the mountain-top…and I have seen the Promised Land. I may not take you there, but I can confirm that I have seen the Promised Land.” And we have seen the generation that prophesized the paradigmatic shift in the manner our institutions, laws and the society generally operates. I am glad the older folk actually envisaged it: a land where man shall not be adjudged by colour, race or tribe, “but by the content of their character…” They dared to dream, and initiated a movement that saw the total annihilation of the tyrannical system, and instead, sought to indoctrinate a structure of egalitarianism. Petulant as the then governments were, the Saviours of Masses dared the state, and were bullied. You remember the assault on Reverend Timothy Njoya. You remember the Nyayo Torture Chambers. In your mind, you can already see the dreadlocked Koigi wa Wamwere, Paul Muite, Raila Odinga, James Orengo…you know them. 

Koigi wa Wamwere

They were persecuted and afflicted for the good of the populace. It may be unsurprising that the same people, we with our wretched selves, cannot pay tribute to them. We, the latter generation may demonize and denounce their ‘uncouth’ methods of seeking redress of social justice and equality. We may actually be blind to the brutality and dictatorial state of government then, which had become a rogue leviathan: eating up its own children and killing the neighbour’s. Seeing the light of day became a luxury, and sleeping with your own family was more than enough to ask for. Well, the supposed protector of the people became the biggest violator of their rights. Hence the push for reforms…

Moi: The father of misgovernance inspects his weapons

Reforms: that very oil that ought to oil the squeaking dry wheels of governance. Reforms were made a mandatory requirement for submission to the state. Resistance and apathy began mounting, and the government could not take it lying down. Amendment after amendment of the constitution was predicated upon hard-core high-handedness and strong-armed techniques employed by the state to dissuade dissent. Torture, detention without trial, mysterious disappearance and assassinations…we saw it all! But the Prophets of our People did not deter. They risked their lives, families and possession, to inculcate justice, constitutionalism and rule of law. Sadly, some of them are now fallen heroes, only remembered in legends drafted hurriedly in old journals. J.M. Kariuki, the Voice of the Poor; Martin Shikuku, the People’s Watchman; Raila Odinga, Son of Sorrow… Not these neo-colonialists who were carried in the pockets of President Moi, Youths for KANU, and surrogates of the tyrant himself, now disguised as “youth” and masquerading as angels of light (sic). But this is not for offspring of KANU, and their families. It is for the true heroes. Those men and women who made us take the dreadful first step. Slaves of justice…

Sons of Impunity: taking after the Master

Looking back, we may not have enough to recompense them for the sacrifices they made. They saw the Promised Land, while at the mountain-top, and came with the news. They will not get us there: no, they are frail, haggard and blood-stained. They need rest. There is need to have new blood, untainted, so-to-say, to take the helms and lead the nation to the Promised Land. The likes of Raila, Kalonzo Musyoka, Otieno Kajwang, Kivutha Kibwana, Orengo, Kiraitu Murungi, Muite…you name them: their time is well spent, and we should be ushering them to a dusk in peace. They should not be tormented with the sickness and troubled of governing a country they so fervently delivered from the jaws of the big bad wolf. And we ought not to entrust this duty on the sons of the wolf. Listen, sons and daughters of my motherland, a serpent’s offspring is a serpent. Uhuru Kenyatta, William Ruto, Dalmas Otieno, Cyrus Jirongo…those are Moi’s children. In fact, they are more skewed towards the older generation than the youth: out they should go. We are talking about youth properly-so-called, and not those oldies with dyed hairs and borrowed tongues on “maze jo.. Hizi ni ma-time za digital.” No way…so shall we not be fooled! Our heritage shall not be under siege again. We, the youthful generation, are coming out clear with the sound of change. This is our time. The wind of change is blowing, can’t you perceive it? Cant’ you see it?

Transition: Youth properly-so-called

Stand up to the thieves of age: the generational strata. We will be discouraged by the ‘youth’ who have conformed to the ideologies of the old folk, or permutated to the likeness of the children of the oppressive leadership. The Murkomens and Kindikis are grandchildren of oppression, by the way. You cannot expect milk from a guava. We should now look at a new and final order of transition: we are on a mission! Youth properly-s-called, such as may be, ought to be ready to chin up. We hold the quail and the knife: we decide whether it lives, or it becomes soup. But we are in control. Inasmuch as we appreciate the role played by the Railas and Kiraitus (read Moses), we the youth (read Joshua) are now charged with the responsibility of taking the children of our Motherland to the Promised land. They will not take us to the Promised Land, if their minds are about combat, rebellion and uprising. Revolutions are now ballot-papered, not coups. And we can have a law, like the United State’s Second Amendment to their Constitution, to exterminate any leadership that turns out oppressive and dictatorial. 

Protest against inequality and oppression

Meanwhile, we ought to seize the power. It is our Time! Not for handouts and scraps off state jobs…no. It is our time to take the economy of this nation to new heights. It is our time to ensure the protection of the constitutionally entrenched rights of the people are respected, promoted and protected. Yea, it is our time to see to the development of our nation, where each man is equal before the law, and has enough to eat, has a home to live, and his property is protected. It is our time to iron out the hatred that was planted by the older generation, perpetuated by their surrogates, and tolerated by prodigies of oppression. It is our time, not to eat ourselves silly, but to ensure that the utilitarian interstice is abridged. To share the resources equally amongst the people, and in a voice known to all of us, sing the song of unity. 

We the people have the power, we the youth have the key to unlock the potential of our nation. We ought to distrust those who have been there and done nothing: in effect they have failed us. Those are acts of negligent omission. They are as wicked in comparison with those who ran the nation down to its knees in corruption, malfeasance, poverty and non-development. Not those that saw our young children die of starvation, or our mothers and sisters raped…Aha. It is time the untainted generation took the real power. This is our time. Hold hands…

A DISSECTION OF SYCOPHANCY

THE CURIOUS CASE OF A KENYAN POLITICIAN

Desperate Politicians

Welcome to Kenyan politics: the process wherein the zombienisation of intelligent minds accrues. And you ask yourself: what really causes the paradigmatic shift, as from a sharp intellectual to a dancer to the tune of a political superior, more often than not, of less academic and social credentials? Very easy, my friends: sycophancy. That drink that quenches a politically thirsty mind. The food for fools. Sycophancy, that which makes man think of himself as deeply adorned, and yet is as naked as day. Stark raving madness: cheap power sourcing. I will address us to just a few of the zombies we have seen created. 

JJ Kamotho: Seasoned Sycophant

Remember JJ Kamotho? The monarch of the “Baba” frame... Well, with that hawkish mouth and bald head, the once political magnate perfected the art of sycophancy, and you would be excused to conclude that he was breathing under the mercy of Baba Moi. And he injected the DNA to new lieutenants. We know Francis Lotodo...you can name them! These old folk can be forgiven, as they were distinctively analogue. 

What is unforgivable is a youth, properly-so-called, doing exactly what wrong the previous breed of politicians committed. And this brings us to the dissection of neo-sycophants: the breed most impervious to reason.

Prof. Muigai

In 2011, President Mwai Kibaki unconstitutionally appointed Prof. Githu Muigai as Attorney General, Justice Aldina Visram as Chief Justice, and Kioko Kilukumi as Director of Public Prosecution. You cannot have missed how Uhuru Kenyatta banged the table, terming “unacceptable” the questioning of the President’s authority. Fast-forward....and anyone questioning a political kingpin is tagged a traitor. Miscreant indeed! So hard has it hit us, that it has been normalized. We support Luo-Nyanza MPs for bashing Nairobi Governor Evans Kidero for “not respecting Raila.” But we haven’t seen it all: do you see how URP Legislators defend Ruto? And how TNA guards the interests of Uhuru from "outsiders"? Ladies and gentlemen, we are now experiencing a rebirth of sycophancy. Only in the superlative form...

From Kalonzo Musyoka’s Eastern Province assault, to Raila Odinga’s Nyanza clout.... Look at Rift Valley sheepishly following Ruto, and Uhuru calling the shots in Central Province. We are experiencing  a germination of a trend, where a Kenyan politician will do all that it takes, including selling his mother, to survive politically. 

Murkomen: Omen

Case study: look at how Onesimus Kipchumba Murkomen has metamorphosized - in the reverse gear. A once astute and intelligent tutor has acquired the dubious distinction of being parochial and inherently paranoid, and even reduced to a village dancer of Elgeyo-Marakwet. When Ruto whistles, Murkomen dances. When Ruto claps, Murkomen dances. Very hard. In his eye, the [Vice] Presidency does no wrong. Or rather, anything the Uhuruto axis does is legitimized, for as long as it is done by the combo. Even to the point of being lashed by fellow Legislators! How blind can a man get?

The President's Chief Clown

Look at the likeness with JJ Kamotho: a parrot, defending the Government with seething teeth and a drooling tongue, ready to devour anyone questioning the activities of the state. He would have no qualms singing a different tune tomorrow, if the situation suits him. Look at Kivutha Kibwana. You know his deeds in the past government. I won’t mention Joshua Kuttuny, the Uhuru’s Political Advisor (stop laughing) as he is inherently a foolish clown - a catastrophe to humanity. And many others.

What happened to integrity? When will intellectuals stand to guide the government, instead of being conformed therewith? Lawyers have been most disappointing, perhaps because we have a higher expectation from them. But we are sure that as the years go by, sycophants are mutating, to be like hard-core criminals, not disillusioned by criticism to their shifty acts. 

For once, let principle stand. Lastly, if you meet Murkomen, tell him Kuttuny is his equal intellectually. At least for now. And that is an insult to the Legal Profession!