Gay debate: Conservatives must up their game

Saturday May 26 2012



Leviticus 18:22 and 20:13 describe homosexual intercourse -- men “lying with mankind as with womankind” -- as “detestable”... and, for that reason, prescribe death by stoning for guilty parties.

Romans 1:27 terms it indecent and observes that there is a “due penalty” for such “perversion”. The Penal Code at section 162 classifies such as “unnatural acts”, entailing carnal knowledge “against the order of nature”.

The penalty for consenting parties is 14 years’ imprisonment, and for commission without consent, 21 years.

I quote the Bible and the Penal Code to establish the probable moral and legal foundation for the vehement condemnation by the Kenyan society for the Lesbian, Gay, Bisexual and Trans-gender (LGBT) individuals and their lifestyle.

The salient component of this outrage is sheer revulsion, hence the description as unnatural, indecent, perverse, disgusting and so forth.

For many, religion and legislation provide a strong basis for that attitude now known as “homophobia”. I am told that the World Day Against Homophobia was observed recently.

I am also informed that the LGBT community in Kenya is fairly well established. Not too long ago, the British Prime Minister threatened to cut aid to countries that do not recognise gay rights as human rights.

Barack Obama, the US President with Kenyan roots, declared a fortnight ago that he approves gay marriages. We are swamped as a continent and as a country with a strong tide of pro-gay ideology that is both persistent and sophisticated.

Our defence has traditionally been that homosexuality is unbiblical, un-African, unnatural and indecent. On this basis, it has been claimed, with much approval, that legalising LGBT lifestyles would be repugnant to justice and morality.

However, on the basis of the latest pro-LGBT onslaught, it is necessary to interrogate the strength of our moral, religious and legal objections and evaluate their rationale and efficacy.

This is because the objections constantly proffered haven’t changed to counter the increasing sophistication of the pro-gay proposition.

First of all, it must be noted that the book of Leviticus is approximately 3,452 years old. Secondly, our Penal Code was borrowed from the colonial template based on English legislation, which is several hundred years old.

I point this out to demonstrate that historically, penal injunctions against homosexuality have a long tradition all over the world.

Now no society can forbid something that does not happen, or is improbable. Consequently, it means that homosexuality has been a social problem from time immemorial. If that is the case, after all these millennia, is there a basis to term it unnatural?

Many describe it as disgusting and so on, but so is the eating of caviar, dogs, cats and assorted mollusks. Is that a sufficient reason to institute a legal prohibition?

Moreover, the Penal Code provisions fly in the face of an express constitutional provision, in Article 27, which proclaims equality before the law and freedom from discrimination.

Every person is equal before the law, and has the right to equal protection and equal benefit of the law.

Equality includes the full and equal enjoyment of all rights and fundamental freedoms. Clauses 4 and 5 emphasise this guarantee by categorically outlawing discrimination by the State and by persons, on any ground.

Article 25, however, does not include this guarantee among those that may not be limited.

Nevertheless, the only constitutional exclusion of homosexuals is contained in article 45(2) that extends the right to marriage only to persons of opposite sexes.

Thus, homosexuals may not marry, yet nothing in the Constitution prohibits them from freely associating and enjoying the full benefits of the Bill of Rights.

Recall that we are all enjoined to interpret and construe the Constitution in as liberal and purposive a manner as to expand to the maximum the enforcement and enjoyment of rights.

Finally, the legal conservatives must have to reckon with a fundamental challenge: is it the proper place of law to voyeuristically delve into the private affairs of consenting adults?

Granted, the LGBT movement threatens to radically overthrow our conception of gender distinctions, in particular the nature and role of masculinity, the conflict between the injunction to extend our circle of moral consideration to “gentiles” versus the need to enforce religious mores.

In a fast evolving global culture, all these controversies, as well as the ethical, moral, legal, religious and social dilemmas engendered by the expansion of knowledge and the rise of science and technology, are par for the course.

Nevertheless, seeing the sophisticated ideological grounding of the LGBT movement against the weak and trite rationale of its antagonists, I believe it’s time that Kenyan society reflected more deeply and evolved sounder counter-arguments.

This will elevate the discourse to a more productive level than the arrant homophobia presently passing as moral objection, and possibly empower the conservative majority. The debate, in its present format, simply won’t do.

The writer is an advocate of the High Court [email protected]: Kwendo Opanga resumes next week.