Why Kenyan constitution must protect gays

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

A country’s soul is measured by how poorly – or well – it treats minorities. That’s why it is very alarming for a member of the Committee of Experts to opine that the draft constitution will not protect gay rights because a majority of Kenyans would reject it.

It’s not the job of the committee to add or remove a particular right because of its prejudgment or prediction of how Kenyans might vote. Nor should the committee cave in to hysteria created by any interest group, no matter how powerful.

But it is the work of the committee, which is composed of experts, to give Kenyans the most democratic and modern draft constitution that protects the rights of all Kenyans, especially the most vulnerable.

Constitutions are not meant to protect only the individuals that we like, and to leave unprotected those who are unpopular, or those the majority may find morally objectionable. Nor should a person’s identity be the reason to deny them protection.

Quite the contrary, a person’s identity – especially if it exposes them to ridicule, attack, or discrimination – must be the reason for constitutional protection. Constitutions protect individuals from the tyranny of the state and oppression from their fellow human beings.

These vertical and horizontal protections are the bulwarks against the unfair exploitation of the weak by the strong, and the domination of the minority by the majority.

Absent this architecture and logic, a constitution becomes the instrument of tyranny and the petri dish for dictatorship. This is the reason the modern democratic constitution must be unfailingly secular and not captive to benighted religious beliefs.

Religious faiths must not be allowed to use the constitution to establish archaic religious views, or vanquish the basic rights of those whom they see as sinners.

The Kenyan constitution cannot be grounded on a world view of sin or the moral predicates of religion. If it did, then Kenya would become a theocracy, not a modern secular democracy.

Nor is it the role of the constitution to choose one sexual orientation over another. The constitution must at least be agnostic on sexuality.

I want to appeal to the humanism intrinsic in religion for those who do not buy the argument of legal equality in secularism and liberalism. The Abrahamic faiths – Christianity, Islam, and Judaism – believe that all humans are God’s children, and that everyone deserves to be protected from discrimination.

That protection must be afforded irrespective of sexual orientation. Where better to entrench such protection than in the basic law of a country?

The “nature” versus “nurture” debate aside, most gay people do not choose to be so. They are gay and not heterosexual. Why should their state of “nature” deprive them of rights any more than it does heterosexuals?

But this is even conceding too much ground. Why should it matter whether one is gay by “nature” or “nurture”? It should not matter whether one is “born gay” or one is gay by choice.

Individuals have the inherent right – not given by a government – to choose how to perform their sexuality. That is why the constitution should protect those who are gay, bisexual, transgender, transsexual, and asexual – including those who are heterosexual.

Heterosexuality, which is only one expression of sexuality, cannot be treated as the only legitimate form of sexual expression. The full development of each human being – which must be the overriding raison d’être of the constitution – must allow for the diversity of sexual expression.

I have heard it said that protecting gay rights will encourage paedophilia and bestiality or sex with animals. This is so absurd that it’s akin to saying that heterosexuality encourages rape!

If so, how can we explain the fact that the Catholic Church in the United States and elsewhere has been rocked by the most scandalous cases of paedophilia and child molestation? Paedophilia and child molestation are vile and disgusting crimes and must never be mentioned in the same breath with homosexuality.

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.