We All Should Be Following Kenya’s LGBTQ+ Supreme Court Case
By Christine Siamanta Kinori
It has only been a few months into 2023 and Kenyans have already been through a lot- from the formation of a new government, the high cost of living, to dissapointing new cases of corruption. However, the main focus of the whole country is currently on LGBTQ+ matters.
The international focus on the Kenyan community has been increasing for the past few months. In January, it was because of Edwin Chiloba’s cruel murder. This month, it is because the Supreme Court, earlier this week ruled in favour of the LGBTQ+ community. The Supreme Court ruled that everyone has a right of association. This means that LGBTQ+ people are finally allowed to register an association for their community.
Initially, the government refused to allow a non-governmental coordination board to register any of the six names proposed by the community’s representatives. According to government officials, registering a National Gay and Lesbian Human Rights Commission and the Gay and Lesbian Human Rights Council would be defying the law.
They cited Section 162 of the Kenyan Penal Code which criminalizes same-sex relationships and advocates for a 14-year sentence for anyone convicted of homosexual acts. However, the Supreme Court, found fault with this argument, stating that it is discriminatory. In its ruling, the Court stated, “the court was of the view that the decision was discriminatory and that it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants.”
It further added that it is important to uphold everyone’s human rights including the queer community. The Supreme Court that LGBTQ+ individuals are humans too and are entitled to enjoy their human rights fully according to chapter four of the constitution. Chapter four clearly states that the State 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.
The Supreme Court pointed out in its ruling that LGBTQ+ individuals have the right to enjoy the same rights heterosexuals have which are not based on their sexual orientation but by virtue of common humanity.
The LGBTQ+ community took this as a win given that they have been trying for years to get an order to declare sections 162 and 165 of the Kenyan Penal Code unconstitutional. Their last attempt in 2019, was thwarted by the High Court. The state still doesn’t allow for same-sex marriages or give the community any protections against discrimination on the basis of sexual orientation and gender identity. Given the harshness of the law, being allowed the right of association is a big deal to the community.
This means that the LGBTQ+ NGOs can now proceed to register themselves without any opposition from the government and carry out various projects that will help the community across the country. For the past few years, LGBTQ + NGOs have always met a wall of opposition from government offices when trying to register themselves. In most cases, the situation is so frustrating they chose to hide their identity to get the registration approved. However, the government still interferes once they learn the truth and force the NGOs to shut down citing wrongful registration practices.
As the Kenyan queer community celebrates, most Kenyans are beside themselves seething with anger over the recent ruling. Most Kenyans are under the impression that the recent ruling will allow for same-sex marriages and offer protection to the community. This is not the case, this ruling simply allows the LGBTQ+ community the right to association. This simply means they have the right to form, join or participate in the activities of an association of any kind. Nothing else has changed, the queer Kenyan community still faces discrimination, mob killings and imprisonment.
I am not surprised by the overreaction from most Kenyans which borders from ignorance to unwillingness to accept the community. Some of the things people had the audacity to say publicly on national TV made me question many things. Some of these words were outright disrespectful. They even dared the President to lead by example and chase his wife away to get married to the Deputy President. This right here should tell you all you need to know about the lack of awareness about LGBTQ+ matters in Kenya.
After heavy backlash, the President and his Deputy finally addressed the nation saying they will not allow satanic beliefs to be pushed in Kenya. President Ruto referred to himself as a God-fearing man who will not stand for the rights of the LGBTQ+ community to be upheld in Kenya. He went on record and said, “ “We respect the Court but… I will not allow it in Kenya. We have our culture and traditions, we respect our constitution and all our religions.” Deputy President Gachagua added, “ Those are satanic beliefs, and we do not want them. That contradicts what we believe.”
In reality, most Kenyans fear that the latest win for the LGBTQ+ community will empower them to advocate for the decriminalisation of same-sex marriages and have their sexual identities recognised by the state. This is why they have their panties in a bunch, they see a revolution coming and the new reality is too much for them to handle! Of course, the queer community in Kenya still has a long way. The road will be paved by thorns from all sides but this is still a step in the right direction.
And as the Attorney General moves to appeal the Supreme Court’s ruling, we can only pray that the appeal will be dismissed. I can’t believe a starving country, faced with more international debt than it can bare has time to agonise over this. We have more to worry about as Kenyans instead of focusing on using the law to prevent two consenting grown-ups from choosing who to love.
Where was this energy when Government officials were stealing money in white sacks from the bank in plain daylight? Lastly, where are we getting this energy when we can barely feed our kids but we are ready to protest to “protect them from the gays? Please, let us get our priority straight! Love is love and should bother no one, can you say the same for the other issues affecting the country? The LGBTQ + community are not the enemies, we are our own enemies.
About the Author:
Christine Siamanta Kinori grew up in a little village in Kenya known as Loitoktok near the border of Kenya and Tanzania. All she wanted to do when she grew up was to explore the world. Her curiosity led her to join Nairobi University to pursue a degree in Journalism and Mass Communications. She later got a job with an amazing travel magazine Nomad Africa which gave her the opportunity to explore Africa. She also writes for numerous travel websites about Africa and tries to create a new narrative in the media about our aesthetic continent.
Christine claims to have somewhat unhealthy addiction to TV and reading, as it is a fun way to keep herself occupied during the long journeys for her travel writing. She is also a believer of letting people be their beautiful selves. To her, love is love and it is the greatest gift we have as humans.
