After a week of intense public debate triggered by the Supreme Court right to association ruling, the President has finally spoken. Hopefully his International Women’s Day comment has calmed the most vociferous of voices and clarified anxiety in several quarters that the ruling may have paved way for marriage equality in Kenya.
Last Friday, the Supreme Court ruled in favour of a ten-year-old application by the National Lesbian and Gay Human Rights Commission to be registered under constitutional Article 36. A crescendo of public statements from apex religious associations and religious leaders including several I personally know, and deeply respect, followed. Wednesday’s National Assembly debate climaxed with calls for fines, life-imprisonment, and death by hanging accompanied by words too unpalatable to repeat here. Like the Deputy President, I too lost my voice for a bit.
While the public debate has left many hurt and livid, we can all take comfort that topics of this controversy are only possible in an open and democratic society. Recognising this, we must take care not to plunge the nation into hatred, vilification, and calls that unleash discrimination and violence on others.
Over the last week, there have been increased incidents of malicious online and offline comments and public demonstrations against persons who identify as inter-sex, gay, lesbian, or transgender. Personal details are being publicly shared, and citizens are reporting confrontations with landlords and employers. There are increasing requests for evacuation, relocation, and psychotherapy at a time when legal and health services and offices are being forced to close due to safety concerns. Organisations who are responding to no less than 117 recent homophobic attacks in the last month are seeing their case-load multiplying.
To put it mildly, same-sex relationships are very controversial. However, most Kenyans are not violently homophobic people. Those few moderate voices who spoke this week argued what happens in our adult bedrooms should remain in our bedrooms. Few Kenyans and we would hope, no religious, political or traditional leader believe that gays either do not exist or are evil and must be assaulted and killed. As we express our moral positions, let us remind extremists among us that violence and discrimination against any human being is criminal and unacceptable. Let us not deteriorate to the mob violence lynching seen our neighbouring countries. Let our words also not trigger grenades in the hands of extremists.
Millions are grappling with feeding families, paying school fees and hospital bills, crushing taxation and state indebtedness, drought and rising sex-crimes at this time. Fed by these challenges, Kenya has a well-cultivated grievance culture. When grievance narratives dominate entire societies, we risk everything.
Several cultural norms and social taboos still justify the mistreatment and exclusion of women, widows, persons with disabilities and minority religions and even, despite being legally recognised, inter-sex persons. Without the protection of our constitution and laws, stigma, exclusion, and violence would be much higher.
It is probably too early and raw for opponents or proponents of gay rights to find common ground or even listen to each-others point of view. This issue has the fury and force of a tornado that threatens to rip the ground from beneath and the compass out of the hands of most. Here, the President’s words are highly significant. He reminds the nation that while citizens and leaders can disagree and even seek to review the recent judgement, they must respect the courts. Secondly, the judgement, a very limited judgement on the right to association, does not legalise same sex relationships. Another constitutional article would have to be repealed by referendum first. It is worth noting that there has not been any litigation calling for this.
Article 45 reaffirms the family as the natural unit of society and basis of social order and defines marital union as consensual and between persons of the opposite sex only. With this, and without denying the validity or strength of any of the arguments expressed this week, perhaps it is time for a cease-fire?