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Why Kenya’s new Constitution protects gays

Saturday December 11 2010



A lot of people have kicked up much dust on the controversial matter of gay rights.

But much of that dust has produced a lot of heat, and no light. That’s why I must tell you what my crystal ball says.

Let me state the bottom line up-front – the Constitution protects gay rights. Period – plain and simple.

This is both a statement of fact and law. But the Constitution goes even further. It does not prohibit same-sex marriages.

As any average first year law student knows, a liberty or freedom that is not prohibited is permitted. But more is at stake.

Are we going to be ruled by fear and hatred, or love? I have said it before, and will do so yet again. Kenya is not a theocracy.


The country is not, and cannot be, governed by religious law. Nor can antiquated cultural norms and tyrannical beliefs imprison us.

Homophobia – the irrational, unscientific, and primitive fear of gays and lesbians – is the vilest of hatreds.

It’s illogical and untenable. Homophobia lies in the same gutter with all the other hatreds, including racism, misogyny, religious bigotry, and tribalism. It’s the oppression of the most vulnerable members of our society.

No progressive person can be a homophobe. Just like no progressive person can hate women because of their gender.

Homophobic heterosexuals need to relax a little and see the humanity in their homosexual compatriots.

Why do I think the Constitution protects gay rights and permits same-sex marriages? I am going to offer you a cold legal analysis of the Constitution devoid of advocacy or politics.

You can take my legal advice to the bank. Perhaps there is no more important clause in any modern Constitution than the “equal protection clause”. This is the overriding provision that is anchored in the anti-discrimination and equality norms.

Without the equal protection clause a constitution would be worthless to protect human rights.

Human rights pivot on – and are made possible by – the legal fiction of equality. Take that away and we all become animals in a jungle. This is the “civilising” core of the modern state.

The universal modern constitution protects a large array of identities in its equal protection clause.

This includes traditional categories like religion, race, ethnicity, colour, social origin, belief, language, conscience, culture, and sex.

But constitutional and international human rights law also protects newer and emerging categories of vulnerability.

These include pregnancy, disability, dress, marital status, and sexual orientation. That’s right – sexual orientation.

But I want to emphasise that sexual orientation refers to a range of emotional and romantic attractions to men, women, both genders, neither gender, or another gender.

State of being

It includes heterosexuality, homosexuality, asexuality, and bisexuality. These sexualities are a state of being, and none is superior to the other. What does the Constitution say?

Two key sections of the Constitution must be read together to make sense of this argument. The first is Section 27 on “Equality and Freedom from Discrimination”.

This is the equal protection clause. Section 27 (1) provides in plain language that “Every person is equal before the law and has the right to equal protection and equal benefit of the law.”

Mark the language refers to “every person.” It does not refer to heterosexuals, blacks, whites, or men.

“Every person” must include those who are gay. The explicit language of the Constitution in this clause “does not exclude gays.”

The drafters of the Constitution would have explicitly excluded gays if that was their intent. This is precisely the case because of the public debate surrounding the question of homosexuality.

By refusing to prohibit same-sex acts in the Constitution, the drafters by that action rejected homophobia. This argument is bolstered by Section 27(4) which provides that “The State shall not discriminate directly or indirectly against any person on any ground including sex.”

The State is put in a straightjacket – it “shall not discriminate directly or indirectly.” The word “indirectly” closes any loophole that the State may conjure up to discriminate against a person.

There is no wiggle room for the State to imagine “any ground” for discrimination. This means that Sections 162-165 of the Penal Code that criminalise same-sex acts are unconstitutional.

But what seals the legal argument for me is the prohibition of “sex” as a ground for discrimination. The term “sex” has been held by leading international human rights treaty bodies to encompass sexual orientation.

This is the case with the UN Human Rights Committee which interprets the International Covenant on Civil and Political Rights, of which Kenya is a party.

Sexual orientation

The reference to “sex” in Section 27(4) must be read as inclusive of sexual orientation. Sexual orientation is an emerging international human right.

It’s explicitly protected in the bill of the rights of the South African Constitution and by courts and governments in Europe, the United States, and countries in Latin America.

Section 27 when read with Section 45 suggests strongly that the Constitution is not opposed to same-sex marriages. Section 45(2) states that “Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.”

The Constitution is silent on same-sex marriages. Note that the Constitution states only that one “has the right to marry a person of the opposite sex”. It does not say that one “shall only marry” a person of the opposite sex.

In such a constitutional silence, rules of textual interpretation favour the grant, not the denial, of rights. That’s why the Supreme Court will affirm the protection of gay rights and same-sex marriages.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.