Wednesday, February 26, 2014

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.