Rights body has finally stood up for gays and lesbians

• The new Constitution does not prohibit same sex marriages among consenting adults

I’ve been pilloried for standing up for gays and lesbians. Tough luck – that won’t stop me. Nor will it drive gay rights activists underground.

Those days are over – gone for good. That’s why I was ecstatic when the Kenya National Commission on Human Rights, the country’s official human rights watchdog, asked the government to decriminalise homosexuality and sex work.

I never thought a credible Kenyan institution would ever do what the KNCHR has done. It’s perhaps the most important social statement to come out of the KNCHR.

It’s an acceptance that gays and lesbians are part of Kenyan society. It means “straights” needn’t be afraid.

Bill of rights

I’ve said before that the new Constitution doesn’t criminalise – or forbid – same-sex relationships. Let’s set the record “straight,” so to speak. The Bill of Rights in the new Constitution is a superior species of law.

Nothing can contradict, or override, the rights therein. What’s my point? Nowhere in the Bill of Rights are the rights of homosexuals proscribed, or limited.

Article 27, which is the Equal Protection of the Constitution, provides “every person” is “equal before the law” and has the “right to equal protection” before the law.

That’s an unequivocal, categorical, and blanket protection against discrimination. The article doesn’t exclude homosexuals from the ambit of constitutional protection. Further, Article 27 (4) prohibits discrimination on the grounds of “sex”.

The prohibition of discrimination on the grounds of sex has been understood to include sexual orientation. The Constitution eliminates all wiggle room by prohibiting both direct and indirect discrimination.

By providing that “every adult has the right to marry a person of the opposite sex,” our Constitution doesn’t prohibit same-sex marriages.

Nowhere does it say that same-sex marriages are proscribed. One needs to look at Article 20 (3) (b) of the Bill of Rights to appreciate how a court may rule on same-sex relationships.

That article clearly requires courts to “adopt the legal interpretation that most favours the enforcement of a right or fundamental freedom.”

The point is that where a right is contested, the courts must take the most liberal interpretation of the law to avoid denying the right.

Put differently, the Bill of Rights is to be interpreted to “expand” – not “constrict” – liberty and freedom.

Legal philosophy

The legal philosophy of the new Constitution is “emancipatory”. It’s not a repressive document that takes away rights, or imagines a closed or rigid category of rights.

On the contrary, the Constitution imagines the vistas of human freedom and liberty to be boundless. It’s a living, not a dead document, one that is frozen in time.