The crime of sexual intercourse between two men or between a man and an animal was introduced in Kenya by the British at the beginning of the 20th century.
It was based on the English law — the Buggery Law of 1533 — and adopted by Henry VIII — which made the crime punishable by death until 1861, when the penalty was reduced to 10 years from life imprisonment. Also known as sodomy, buggery as a crime was removed from the English law in 1967, while it remains firmly entrenched in the Kenyan law.
It is described in Section 162 of the Penal Code as “carnal knowledge of any person against the order of nature” or “carnal knowledge of an animal”. The crime is punishable by imprisonment of up to 20 years.
ALTHOUGH BUGGERY WAS NEVER A crime before the arrival of the British in most of our communities — and even today it is rarely prosecuted — it is widely condemned by most Africans as an abomination. Witness the almost hysterical outcry against the two men of Kenyan origin, Charles Ngengi and Daniel Chege Gichia, who wed in London under a British law, which allows homosexuals to marry.
The marriage was played up in the Kenyan media, with reporters even visiting the rural homes of the gay couple in Kenya to find out their parents’ reactions. It is not surprising that the couple has now appealed to Kenyans to leave them alone and respect their privacy. And we should, because their marriage does not harm or interfere with us. It is none of our business. “We appeal to the Kenyan public and the media to leave us alone; we have not committed any crime, our marriage is within the UK law,” said Daniel Gichia.
Homosexuality was decriminalised in Britain by way of the Sexual Offences Act of 1967, which followed the recommendations of the Wolfenden Report, published in 1957. The report concluded, after a three-year-long inquiry, that homosexual behaviour between consenting adults “should no longer be a criminal offence”. The report said society and the law should respect “individual freedom of actions in matters of private morality”.
Private morality or immorality was “not the law’s business”, the report said, and such acts should be decriminalised if they took place “in private” and with consent. It added: “The law’s function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others ...
It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour.” The 155-page report of the Committee on Homosexual Offences and Prostitution in Great Britain, headed by Sir John Wolfenden, then Reading University vice-chancellor, was a runaway bestseller.
It used the findings of psychoanalysis and social science to persuade MPs to avoid legislating morality and to concern themselves only with sexual acts that offend public decency or disrupt order. The report was a watershed. It set the trend towards the legalisation of homosexuality in Western countries, most of which have now legalised homosexuality.
Back home in Kenya, the term “bugger” moved into the local vocabulary as a form of extreme insult or condemnation. Thus, in the book, It’s Our Turn to Eat, by British author and journalist Michela Wrong, John Githongo, a former anti-corruption czar, easily talks of high-ranking government officials as “these buggers”.
IT IS IRONIC, HOWEVER, THAT WHILE Britain did away with its buggery law more than 40 years ago, we retain a law that is a colonial relic. The law puts us exactly where the British were in 1957, when the Wolfenden Report was published. The Wolfenden Report touched off the most violent reaction. “Bad, retrograde and utterly to be condemned,” said the London Evening Standard, arguing that homosexuality was a “form of depravity”.
The Daily Mail, the United Kingdom’s second biggest-selling daily today, said the report legalised “degradation” and warned that “great nations have fallen and empires decayed” because such things became socially acceptable. One woman MP complained loudly on television: “There’s no knowing where it will end. We may even have husbands enticed away from wives.”