When the law declares something to be wrong, it does so by making it a crime to do that thing. What happens when the law declares that something cannot, in law, exist? Does it declare the person, or the thing, to be illegal? The Associated Press, in recent weeks, has made changes to its stylebook, saying that the phrase "illegal immigrant" should be replaced with the phrase "illegal immigration." "Illegal" should be used in connection with an act and not a class of persons.
In Kenya, the story of Andrew Mbugua, who would like to be known as Audrey Mbugua, has agitated the nascent religious right. Audrey states unequivocally that she is not gay; all she wants is for the law to accept her for who she is. This is not to say that there are no legal issues to be ironed out. For example, would Audrey be allowed to get married to a man once she undergoes gender reassignment surgery. In a nation that glorifies sons over daughters when it comes to succession matters, would Audrey be allowed to inherit from her father as a son or a daughter? What of the documents of identity issued by the government such as her national identity card or passport: would they be issued to her as a woman or a man?
As with every knotty problem in Kenya, we must begin with what the Constitution of Kenya permits or does not permit. The Bill of Rights in the Constitution of Kenya prioritises individual liberty, especially in an individual's relationship with the State. To a great extent, this is anathema to African cultures that place primacy on the collective over the individual. For the most part, one is superior to the other. The community comes first; the individual must bend to the will of the majority.
Despite the cultural histories of the peoples of Kenya, the Constitution seems to place the individual first. How this happened during the years of the Bomas conference remains a mystery. But this is where we are today; individual rights more often than not supersede majority rights. The right to vote, to found a family, to legal representation, to own property, or to stand for public office is an individual right, not a collective right. Therefore, the right to an identity of ones choice is an individual right. While the Constitution declares that family is the foundation of society, it makes it an individual right for a person to freely marry a person of the opposite sex. But, crucially, it does not expressly prevent a person of on sex freely marrying a person of the same sex. It seems, if one takes the power of the government to limit individuals' rights under Article 24 as a reasonable rule, that the government could make it a crime for a person to marry another of the same sex, regardless of choice or consent.
Over the past fifty years, our concept of family and individual freedom has evolved mightily. Many of the institutions that placed primacy in the majority over the individual have crumbled. It is rare indeed to witness cohesive extended families today; we are more likely to witness nuclear families which are also increasingly single-parent families to boot. The church has become greatly discredited and its insights on family are increasingly being rejected by many individuals. Therefore, when Audrey challenges the rigid interpretation of church regarding identity and family, she is the sharp end of the spear that is piercing the nascent right's iron-grip on a definition of family that no longer exists.
Whether Audrey, and those in the Kenyan LGBTI coalition, prevail will speak more to the supremacy of individual rights over collective rights or vice versa and whether Kenyans are prepared to defy their deeply held prejudices and adopt new ones and new definitions. If the nascent right was truly determined to preserve the traditional definition of family, their focus would not be the campaign to prevent Audrey from adopting the identity of her choice or abortion; it would also pursue a campaign against single-parent families, incest, polygamy (though that is a traditional, cultural shibboleth in Kenya), universal adult suffrage, women empowerment, women employment, and so on and so forth. In short, it would have all its fingers and toes in the million of leaks in the crumbling levee of tradition. Good luck to them, eh!