The gay and lesbian two-step.

I didn't see that one coming. Lenaola, Ngugi and Odunga, JJ, interpreted the Constitution and directed that the NGO Board the register the Gay and Lesbian Human Rights Commission. But what I didn't see coming is something we have not paid attention to. The Government of Kenya is called upon to declare that "the Almighty God", whose supremacy is acknowledged in the preamble to the Constitution, exists.

Culture exists. Taboos are commonplace. Sentiments can be gauged. Religions are a dime a dozen in Kenya. But the State - other than the Islamic State, the Islamic Republic and the Vatican - does not declare the existence of god to be a fact. The unregistered Gay and Lesbian Human Rights Commission has compelled the Attorney-General and the NGO Board - State organs both - to declare unequivocally that Almighty God exists and that Almighty God would be offended by the name of the organisation. "Gay" and "lesbian" in the name of an organisation registered under a law of Kenya would offend Almighty God.

Things, it seems, were cozier under the former constitution. The Penal Code was supreme. Its provisions were enforced without doubts. State organisations could act with caprice and they would not be held to account. Under the Constitution we promulgated in 2010, that cozy arrangement has now been shot to hell by the High Court. The Bill of Rights is supreme. Words like "dignity" and "discrimination" have deeper meaning and the State and ts organs are obliged to deal with these deeper meanings.

The High Court seems to say that while we, as the makers of the Constitution, might acknowledge the existence of Almighty God, that is not enough to discriminate against homosexuals who must be allowed to live a life of dignity under the Constitution. It is only a matter of time before the High Court lights on the interpretation of "dignity" by the Federal Constitution Court of Germany when it interpreted Germany's basic Law in the light of anti-terrorism legislation. If that happens I shudder to think what the Attorney-General will argue when he appeals against another ruling of the High Court that strikes down a discriminatory act by the State as unconstitutional.

We have a lot of work to do before we can make our constitution work. Most of that work will be to prise the cold dead hands of the deep, conservative State from the levers of power. Many are afraid that placing the constitution even above god is a recipe for disaster. Unless god is willing to come down to Earth and fight his battles, we must make the law of the land the constitution that we endorsed. Religions can teach us what they will, but they are not subject to referenda or promulgation. Soon someone will challenge the legitimacy of religion, religious laws and the power of godmen to order our lives. It will not be pretty either.