Barack
Obama, the Democratic US President, recently "finally" came to the
conclusion that homosexual persons had the right to get married. An
evolution that had been on-going since he decided to run for the US
presidency in 2007 has finally reached its logical conclusion. In Kenya,
meanwhile, the law continues to be the preferred weapon to keep
same-sex sexuality in the closet that Kenyans are used to having it.
Even when daily reminders of the homosexual scourge keep popping up with
uncomfortable rapidity we are persuaded, whether rightly or wrongly,
that this nation is firmly in the anti-homosexual column. But that cozy
reality is about to be shattered.
The Constitution, contrary to what many think, does not explicitly ban homosexual acts or even homosexual marital unions. Some will argue that the explicitly stated right of a person of one sex marrying a person of the opposite sex also means that there is no right of a same sex marital union. Nothing could be further from the truth. The Committee of Experts, in one of its more inept drafting exercises, failed to use the one word that would have guaranteed such an outcomes. Had Article 45(2) been drafted thus "Every adult has the right to marry a person of the opposite sex only , based on the free consent of the parties", then even the Anti-discrimination Rule in Art 27 would not have applied. This rule, too, if it had meant to exclude homosexual acts would have not have used the words "including" and "or" and thus the 17 grounds listed in Art 27(4) would have been final and exhaustive. Now, any advocate worth his law degree can make the argument that sexual orientation is not and cannot be a basis for discrimination while arguing for the amendment of the Penal Code to decriminalise "acts against the order of nature" (Ss 162, 163, and 165) or the "unenumerated" right of homosexual couples to get married.
There is a common conflation of family with marriage, yet the two, while interlinked, are not the same. Even religious texts remain vague about the divine call to marriage, merely describing the mechanics of marriage rather than its divine sanction. Family is barely mentioned in the Bible. It has been inferred for centuries as akin to the Holy Family, but the only reference I can draw for the institution of marriage is in the Messiah's rejection of divorce, save for the offence of fornication (Matt XIX: 8). Social scientists on both sides of the debate opine variously on one hand that a heterosexual union is good for the children and on the other so too is a homosexual union. But it is in the steadfast refusal by the protectors of public morality of the pernicious effects of modernism on our social and cultural lives that the conservative, family-first movement fails to counter the onward thrust of the progressive movement.
Since the Union Jack was lowered and Kenyans were allowed to govern themselves, and especially since we declared Kenya republic, many of the shibboleths that we cling to seem to be stuck in a time warp. While the United Kingdom has evolved beyond what it was in 1963 on social, religious and cultural matters, Kenya seems to have remained stuck, at least in some parts while other parts have leapfrogged even the British. The starkest development over the past twenty-five years has been the steady decline in family values and the sense of community a family inculcated in a community's right-thinking members. No one can argue that single-parent families are the cause for the spread of homosexuality, but it is indicative of the permissiveness prevalent in Kenyan society today. It is no longer fashionable, or even moral, to ostracise members of the community for certain lapses in judgment and it is only a matter of time before our liberal predilections extend the limits of our moral tolerance to include men and women accused of unnatural feelings, and acts.
Even with the charge against liberalising the anti-homosexual laws being led by the likes of William Ruto and his acolytes in the evangelical Christian movement, if we truly want to re-create the Kenya that adopted and ruthlessly enforced Victorian mores, then we must do more to recreate the extended family and the sense of community that prevailed right into the 1980s. Instead of championing homosexual-promoting ideas such as free speech or privacy, we must ensure that everybody and his dog is able to take a real close look into our bedrooms to ensure that the person you are sharing your bed with is not only of the opposite gender but that they are your spouse, whether affirmed by civil or customary norms. But, and this must come as a shock for the Moral Majority, the Constitution we ratified in August 2010 is not designed to roll back the tide of time; it is meant to free Kenyans fro the shackles of their leaders, their government, their pastor and their teacher. This is especially true of the homosexual population of Kenya.
The Constitution, contrary to what many think, does not explicitly ban homosexual acts or even homosexual marital unions. Some will argue that the explicitly stated right of a person of one sex marrying a person of the opposite sex also means that there is no right of a same sex marital union. Nothing could be further from the truth. The Committee of Experts, in one of its more inept drafting exercises, failed to use the one word that would have guaranteed such an outcomes. Had Article 45(2) been drafted thus "Every adult has the right to marry a person of the opposite sex only , based on the free consent of the parties", then even the Anti-discrimination Rule in Art 27 would not have applied. This rule, too, if it had meant to exclude homosexual acts would have not have used the words "including" and "or" and thus the 17 grounds listed in Art 27(4) would have been final and exhaustive. Now, any advocate worth his law degree can make the argument that sexual orientation is not and cannot be a basis for discrimination while arguing for the amendment of the Penal Code to decriminalise "acts against the order of nature" (Ss 162, 163, and 165) or the "unenumerated" right of homosexual couples to get married.
There is a common conflation of family with marriage, yet the two, while interlinked, are not the same. Even religious texts remain vague about the divine call to marriage, merely describing the mechanics of marriage rather than its divine sanction. Family is barely mentioned in the Bible. It has been inferred for centuries as akin to the Holy Family, but the only reference I can draw for the institution of marriage is in the Messiah's rejection of divorce, save for the offence of fornication (Matt XIX: 8). Social scientists on both sides of the debate opine variously on one hand that a heterosexual union is good for the children and on the other so too is a homosexual union. But it is in the steadfast refusal by the protectors of public morality of the pernicious effects of modernism on our social and cultural lives that the conservative, family-first movement fails to counter the onward thrust of the progressive movement.
Since the Union Jack was lowered and Kenyans were allowed to govern themselves, and especially since we declared Kenya republic, many of the shibboleths that we cling to seem to be stuck in a time warp. While the United Kingdom has evolved beyond what it was in 1963 on social, religious and cultural matters, Kenya seems to have remained stuck, at least in some parts while other parts have leapfrogged even the British. The starkest development over the past twenty-five years has been the steady decline in family values and the sense of community a family inculcated in a community's right-thinking members. No one can argue that single-parent families are the cause for the spread of homosexuality, but it is indicative of the permissiveness prevalent in Kenyan society today. It is no longer fashionable, or even moral, to ostracise members of the community for certain lapses in judgment and it is only a matter of time before our liberal predilections extend the limits of our moral tolerance to include men and women accused of unnatural feelings, and acts.
Even with the charge against liberalising the anti-homosexual laws being led by the likes of William Ruto and his acolytes in the evangelical Christian movement, if we truly want to re-create the Kenya that adopted and ruthlessly enforced Victorian mores, then we must do more to recreate the extended family and the sense of community that prevailed right into the 1980s. Instead of championing homosexual-promoting ideas such as free speech or privacy, we must ensure that everybody and his dog is able to take a real close look into our bedrooms to ensure that the person you are sharing your bed with is not only of the opposite gender but that they are your spouse, whether affirmed by civil or customary norms. But, and this must come as a shock for the Moral Majority, the Constitution we ratified in August 2010 is not designed to roll back the tide of time; it is meant to free Kenyans fro the shackles of their leaders, their government, their pastor and their teacher. This is especially true of the homosexual population of Kenya.
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