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Battle for soul of the nation will not be won in courts

Saturday June 15 2019

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The courts have in recent days been the arena of a contest whose implications go way beyond the present players.

First was the case in which LGBTQ activists lost a case pushing for the repeal of section 162 of the penal code that criminalises homosexual relations.

This ruling, seen as a major blow against gay rights activists, was greatly celebrated by conservative groups such as the Kenya Christian Professionals Forum (KCPF) and other religious leaders.

After that, focus turned to another case in which the Federation of Women Lawyers (Fida), with others, had sued the Attorney-General.

They sought to secure safe post-abortion care through the reinstatement of guidelines earlier withdrawn by the Ministry of Health, as well as judicial pronouncement on a variety of related issues.


The court ruled in favour of Fida. The KCPF, enjoined as a respondent, has interpreted this ruling as opening the doors for abortion on demand, and indicated their intention to appeal.

While these rulings have significantly divided public discourse, they point to an important reality.

This is that in an increasingly globalised and liberalised world, various players are involved in a high-stakes, often subtle, battle for the soul of the nation.

The growing push to expand the space for personal choices on diverse matters is meeting the age-old desire of society, or at least sections of it, to limit individual freedoms and choices based on shared beliefs, values and codes.


What should not be lost on these legal interlocutors is that these battles will not be won, or lost, ultimately, in the courts.

They will be won in the public arena through the shaping of culture by means of superior intellectual and moral arguments.

These two rulings have, in some way, resulted in a draw; but the match is not over. The court cases have only provided a much needed reprieve to engage in the battle where it matters most.

Since these are not trifle matters, one does hope that the days ahead will bring forth some honest, robust and truthful conversation, even in a society that has been defined as a “post-truth society”.