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Outlawing homosexuality an exercise in futility

Saturday May 9 2015

Eric Gitari speaks during a past event. FILE PHOTO | CHARLES WANYORO

Eric Gitari speaks during a past event. FILE PHOTO | CHARLES WANYORO | NATION MEDIA GROUP

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A couple of weeks ago, we were informed that homosexuality would not be allowed in Kenya.

This was after a court ruled that it was unconstitutional for the NGO regulatory authority to deny a gay and lesbian lobby group registration as an NGO.

The judges argued that the Constitution guaranteed freedom of association and outlawed discrimination against any group of persons.

A motley crowd of political and religious leaders has come out in support of the proclamation outlawing homosexuality, necessitating a more in-depth treatment of this subject.

Firstly, we are told that registering this NGO legalises gay marriage and contravenes the constitutional injunction that people shall marry only from the opposite sex.

This is, in my view, stretching the truth. The truth is that so far, nobody has advocated gay marriage in this country.


Gay and lesbian Kenyans have simply asked the government to allow them to register an NGO to facilitate their freedom of association as persons with different sexualities.

Kenyans will have the opportunity to interrogate any desire for gay marriage if and when such a proposal is made.

At the moment, this cannot be done because it is explicitly outlawed by the Constitution, and changing this may require a referendum. Should such a proposal be endorsed at a referendum, we will have no choice but to implement it as the desire of the people of Kenya and not just a section of Kenyans.


Secondly, the argument that homosexuality is a foreign concept keeps recurring. If this is the case, then our political and religious leaders have nothing to worry about!

The foreignness of the homosexual identity ought to be sufficiently clear to the individual Kenyan, who would then be completely repulsed by it, and there would be no chance of a true Kenyan embracing this lifestyle.

But this narrative cannot explain the multitude of homosexual Kenyans who are unable to reconcile their enforced social identities with their actual experienced identities.

We have Kenyans who are homosexual. That is a fact we cannot run away from, and it makes homosexuality as Kenyan as our love for nyama choma; as Kenyan as the ubiquitous matatu, as Kenyan as harambee.

Finally, we must now interrogate the statement that homosexuality has no place in Kenya.

As we have argued before, homosexuality, like all sexuality, is a tripartite concept. There is homosexual orientation (sexual attraction to persons of the same sex), homosexual identity (acknowledging one’s homosexuality), and homosexual behaviour (engaging in sexual acts with persons of the same sex).

Of these three components, only the last one (homosexual behaviour) is readily apparent to third parties.

To make it even more complicated, these behaviours often occur in private, and it is difficult for third parties to determine that anything happened.

Further, homosexual orientation is not always acknowledged or expressed. Thus a homosexual may not identify as one, and might not engage in homosexual behaviour.

Conversely, not everyone who engages in homosexual behaviour has homosexual orientation, and this includes most of the experimentation among adolescents and in institutions of confinement.

Which of these components is being outlawed? What is the implication of the “ban”? Might Kenya become the first country in the world to develop a homosexual orientation identification test, or a machine for this purpose? I don’t know!

Prof Lukoye is Associate Professor of Psychiatry and Dean, Moi University School of Medicine [email protected]