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Possibly, shortly before this article appears, a case will have been argued in the High Court about whether provisions in the Penal Code penalising homosexual activity are against the Constitution.

Particularly when the topic arouses as much emotion as this one, you are more likely to read or hear denunciations and rhetoric than any coherent exposition of what is actually being argued, which newspapers are rarely able to give. This piece is not directed at the judges— who will make up their minds on the basis of the arguments they have heard in court, or anyway have in written form—but at the ordinary Kenyan who perhaps is puzzled by what may seem to be an assault on his or her values.

Focussing on the human being

There are some arguments in the court case of a rather technical nature about whether the language of the Penal Code is clear enough. We don’t want to go into that—which would anyway drag us into areas that it might not be best discussed in a family newspaper. Our focus here is the same as the central concern of the petitioners in the case: the plight of the human being who is sexually attracted to individuals of the same sex. Under current Kenyan law, that person cannot express that attraction without running the risk of being prosecuted, or at least investigated by the police. Any investigation will be a serious attack on their privacy, involving prying into the most private aspect of the person’s life: what they do in their own bedroom. Because of fear that this might happen, many people in that position are afraid to admit their sexual orientation. They will hide it, even if it might be relevant to, for example, medical treatment, such as for HIV. The current law seems to endorse intolerance, and sometimes even violence, helping to place ordinary members of our society on the margins, and making them indeed, a ‘marginalised group’ as the Constitution terms those who have been discriminated against in the past.

Doing away with the criminal law would not change all that of course: other people would still have their own opinions, maybe of curiosity or condemnation. But some of the fear and the risk of humiliation would be removed. The sense of being legally marginalised and threatened for something that one did not choose would vanish.

Rights under the Constitution

The Constitution gives us all a new lens through which to look at our society. The key constitutional question in this case is: can there be any justification for imposing on our fellow citizens this type of intrusion, humiliation, and sometimes even persecution?

The Constitution says that everyone has the right to privacy. And they have the right to dignity. And the right to be treated equally. The privacy problem we have summarised earlier. Anyone would also see that being at risk of having one’s private relationships interrogated is an assault on one’s dignity, as is being pushed to the margins of society. And, although in law mixed sex couples could equally be prosecuted for one of the Penal Code offences (yes –it does not specify men only), in reality this does not happen. The law is applied to—or hangs over—in a discriminatory way only men with men. Yet the Constitution bars discrimination on any ground.

The Constitution also recognises the right to health, which the inhibition that gay men feel—especially for fear of being prosecuted—in admitting their sexual orientation to health workers interferes with their enjoyment of the right to health.

But rights are not absolute

This is the constitutional core of the argument. Most of the rights we have, including all those mentioned here, may be limited by the law in some circumstances. What are those circumstances? The most important question is: what is supposed to be achieved limiting the rights? How valid, how important is that purpose? It must be an important purpose to justify limiting rights that the people of Kenya wanted written into their constitution. Even if the purpose is important, could we achieve it without limiting rights, or by limiting rights less?

What are the purposes?

Some people would probably respond by saying that gay sex is morally wrong. They might say that their religion prohibits it. Some people might even say that it is disgusting. And others would say it is against African culture.

Others seem to think that gay people are a danger to others, that they are particularly prone to sexually assaulting others.

Some people fear that legalising gay sex is the thin end of the wedge: that the next thing is to legalise gay marriage, and that that endangers the whole institution of marriage.

For some—perhaps underlying all these other justifications—there is an assumption that people who are attracted to those of the same sex make a choice, and that they can be ‘cured’, persuaded or punished into changing their ways.

Unpacking the supposed purposes

The petitioners, and others involved in this case, would respond: that these do not at all justify criminalising gay sexual behaviour, and that some are based on entirely false assumptions.

People are fully entitled to their moral and religious standards. But does this justify penalising others who do not share those standards, if they are not harming anyone? We all have freedom of religion, even to have no religion. We penalise killing, stealing and tax avoidance, for example, not because of they are sins, though they are, but because they are harmful to individuals or the public. We do not ban lying, though it is wrong, unless it is harmful.

But does sex between consenting adults of the same sex harm anyone? People may be offended by it, but are they harmed?

Our constitution protects minorities against unfair restrictions by the majority. That is what human rights provisions are for. It is simply not right to say that the majority view must prevail.

To assume that gay people all abuse others is not justified, and is discriminatory. And to the extent that gay sex might be harmful (which would be if it was against a person’s will) it is punishable under another, very strict, law. The Sexual Offences Act penalises not only male abuse of females. Also, if there was any element of transmission of HIV, to transmit HIV deliberately is a crime, whether committed in the context of a same-sex or mixed-sex relationship.

The idea that homosexuality is un-African has no basis in fact. The petitioners have expert witnesses who will show that all societies have roughly the same percentage of persons sexually attracted to those of the same sex: about 4%. In fact, what is un-African is the law against same-sex relations: it was introduced by the British in all its colonies, after having been introduced in the UK itself in the 1880s. Other colonising nations did not do the same.

Another myth is that being gay is a choice. The expert evidence shows that people do not choose it, and they cannot be ‘cured’.

Finally, gay marriage: the Constitution makes it clear that no-one can claim a right to marry a person of the same sex. Our Constitution is maybe unique in this. So the thin end of the wedge argument is far harder to make.

On the basis of these points, the petitioner is saying that the supposed purpose of the law: which is to deter homosexual activity, is based on false assumptions, and is not a valid purpose justifying major assaults on people’s rights.

Back to the human being

The petitioner’s submission quotes Bishop Desmond Tutu, a great Christian and a great humanist, who said this to the UN: “All over the world, lesbian, gay, bisexual and transgender people are persecuted. They face violence, torture and criminal sanctions because of how they live and who they love. We make them doubt that they are too children of God – and this must be nearly the ultimate blasphemy. They are equal members of the human family.”

Authored by By Jill Cottrell Ghai & Yash Pal Ghai

Published by The Star