Why Kenyan constitution must protect gays

• People have inherent right to choose how to perform their sexuality

Those who would whip up hysteria by such false and malicious propaganda do not respect human life or wish for the dignity and prosperity of those who are different from them.

This hate has no place in a constitutional dispensation. No one should be permitted to hide behind the veil of the state or the constitution to perpetuate such abominable hatred.

The committee writing the draft constitution needs to remember that constitutions are not contests of popularity, but quests for the legitimacy of the standards by which a state will be governed and the people in it will live.

That’s why constitutions pivot on the bill of rights, an anti-majoritarian device that seeks to insulate basic rights from the claws of the majority. The bill of rights is an admission that the majority is not always right, and that certain rights are foundational to civilisation.

One of those rights is the equal protection of minorities against discrimination. South Africa recognised this basic fact when it protected sexual minorities and gay rights in its post-apartheid constitution. Kenya must follow suit.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the Kenya Human Rights Commission.