Sunday, December 12, 2010

Equity cannot exclude homosexuals

Prof. Makau Mutua is wading into uncharted waters when he declares unequivocally that the Constitution protects the rights of homosexuals, even the right to get married(Why Kenya's new Constitution protects gays, Sunday Nation, December 12, 2010). However, I can find no flaw in his argument. Charles Kanjama argues that the wages of deceit by the Prime Minister and those who stood on the Yes side during the referendum campaign (Wages of deceit catching up with leaders on new laws, Sunday Standard, December 12, 2010). I can find no flaw in his argument either.

Prof. Makau teaches at the State University of New York in Buffalo, New York in the USA. He has spent a considerable portion of his professional career in the United States and is, therefore, invariably familiar with the Doctrine of Unenumerated Rights, an American constitutional principle that holds that rights that are not explicitly excluded are protected by the Constitution even if they have not been enumerated (written) in the Constitution. Mr. Kanjama is right - the drafters of the Constitution used ambiguous and unclear language in the Constitution, especially the rights of a person to marry another person of the opposite sex. Therefore, the pronouncements by the politicians campaigning for the ratification of the Proposed Constitution did not tell the whole truth when they stated that the Proposed Constitution did not permit gay marriage.

Prof. Makau insists that Articles 27 (1), 27 (4) and 45 (2) must be read together if the rights of homosexual couples are to be protected. He is right when he insists that Art. 27(1) applies to all persons regardless of their sexual orientation or, indeed, their sexuality. He however omitted to state that Art. 27(4) is not exhaustive; that even if we were to assume that Art. 27(1) did not apply to all persons, Art. 27 (4) would of necessity include sexual orientation as a ground for which discrimination could not be based. The use of the word 'including' in Art. 27 (4) before the grounds enumerated in the Article ensures that the Courts have the jurisdiction for expanding the grounds they can rely on in protecting Kenyans from discrimination, including sexual orientation. Art. 45 (2) protects the right of heterosexual couples to enter into the institution of marriage. It does not, however, prevent homosexual couples from so doing. The right of a homosexual couple to get married is an unenumerated right which the State, other any other person or authority, cannot take away, not even the Prime Minister. He is also right when he states that because of the promulgation of the Constitution, the provisions in the Penal Code criminalising homosexuality or homosexual acts are now ultra vires the Constitution and cannot be enforced by the State or the Courts. He should have added that it is now the responsibility of the State to protect the rights of homosexuals, bisexuals, trans-sexuals, asexuals to engage in consensual lawful acts, whether State officers agree with their choices or not. This will be the challenge of the nation - to enforce the bits of the Constitution that the majority considers to be immoral to protect minorities, such as they are, from the abuse of the majority.

Mr. Kanjama points out to a reality of the political terrain in Kenya. It is impossible for the political class to speak the truth in the pursuit of their objectives. During the referendum campaign, both sides engaged in such wanton and rampant distortion of the truth that it is almost impossible to imagine that they remember the positions they took regarding specific items in the Proposed Constitution that they either agreed with or disagreed with. What is unconscionable is that both sides agreed that homosexuality was 'un-African' and that it should not be permitted, but that they failed to take any steps to ensure that the articles they felt could permit homosexuality to thrive were either amended or expunged in toto. This was not a matter in contention between the two sides but in their desire to pull a fast one over the other, they allowed the bigger picture to be distorted. Now both sides must live with the choices that were made and make the best of a bad situation.

The Prime Minister's recent rant against homosexuality and homosexuals, equating their choices as 'mad', exposes him to charges of hunting with hounds while running with the hares. Is this what is expected of him when he becomes the President and Commander-in-Chief in 2013? The Member for Eldoret North was given an opportunity to ensure that a Special Tribunal was created to try cases related to the Post-Election Violence of 2007/08, but he chose 'the Hague Option' and now he is crying foul when his projections of an 80-year investigation have been found to be way off the mark. His accusations against Luis Moreno-Ocampo have the whiff of panic and it is time he resigned himself to the process if he indeed is a suspect in the violence that killed thousands, displaced hundreds of thousands (who are yet to be re-settled or compensated) and led to the loss of billions in property and earnings. The Member for Kitui Central has discovered that there are no sacred cows where the Constitution is concerned and the provisions on leadership and integrity must be enforced ruthlessly whether one is a 'reformer' or a woman. Her actions in the Ministry of Water and Irrigation may have been above board but there is no doubt now that corrupt deals have been concluded while she was the Minister in charge and that indeed, some companies linked to her relatives benefitted from the Ministry's tendering process. She has no option but to resign while full and impartial investigations are carried out by the relevant authorities. He relationship with the President or the Prime Minister is immaterial to her guilt or innocence. They cannot declare her white as the driven snow for they are not the authorities charged with determining her guilt or innocence.

The implementation of the Constitution is not a theoretical exercise for in its implementation are significant changes that will be for the benefit of all Kenyans. Prof. Makau and Mr. Kanjama are right to demand that all Kenyans keep an extra vigilant eye on all the players in the implementation process. This is no time for Kenyans to go back to the habitual selves and get more engaged in the process. Even if the final bill leads to higher taxes, it should be in the knowledge that in the years to come, no Kenyan will escape the attentions of the Kenya revenue Authority. If our leaders bore the same costs of government that we do they would take all steps to ensure that the tax-burden was shared equitably and that the cost of government was radically reduced. Then the objective of the Constitution of creating an equitable society would be realised for all, even homosexuals.

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