Tuesday, October 25, 2016

Gayism and the Deputy Chief Justice

I don't know any gay people. (I don't know any openly gay people; I think I know a few closeted gay people.) I don't think it would matter if I knew a person were gay. It doesn't seem to matter that I know a person is straight. Yet the candidate for the office of Deputy Chief Justice and Deputy President of the Supreme Court is quoted as saying that she would need to know whether gayism was a matter of choice or it was in-born to deal with gayism. ("Gayism", as Senor Google reminds us, is homosexuality, the sexual orientation in which a person is romantically or sexually attracted to people of their own gender.)

(Gayism homosexuality is criminalised under the Penal Code of the laws of Kenya at sections 162 that declares "acts against the order of nature" to be felonies, 163 that criminalises attempts to commit acts against the order of nature and 165 that criminalises "indecent acts between males". The law on "gayism", as it were, is plain and requires no judicial inquiry as to whether the commission of the offence was innate or because of an act of free will. Whether consensual sexual acts should be criminalised in the first place remains a question that Kenya is unprepared to answer in full.)

In my relations and acquaintances, I struggle to identify instances where they are only coloured by whether or not those I encounter are sexual beings and if they are, what kinds of sexual beings they are. My relationship with my parents, siblings, cousins, nephews, grandparents, uncles or aunts is not a sexual one and I would be mortified to even entertain the question of whether or not they have sex and whom they are sexually attracted to. If you're as normal (and prudish) as I am, these are questions that should make you blush, dark skin that you are. Blush and blush mightily!

Of those I am acquainted with, of course there are those I have felt the frisson of excitement, the slight drop as if you're floating in zero-g, that rush you get when you think, How hot you are. It doesn't matter whether you're gay or straight, when you meet a person to whom you're instinctively and instantly attracted, the supercomputer that is your brain engages in a fantasy of how it would feel to kiss that person, take them to bed, hold them to your body. If you're normal, once more, your mind will swiftly discard these fantasies if it is not in your best interests to entertain them. Unless you're Donald J Trump, you're unlikely to continue fantasising about taking your boss to bed, co-workers, your significant other's siblings, parents, relatives, children or the like. Unless you have been raised to be guided only by your needs, to eschew all moral standards to which your community ascribes, that part of your brain that's sexually aroused will be overwhelmed by good judgment and, in some cases, shame.

Most of us interact withe each other on the basis of shared values, both professional and moral, and we apply these standards against each other without worrying too much as to whether they are innate or learned. If we knew someone who was a professional in all their undertakings, told the truth as much as we think we did, didn't cheat clients out of their money, brought the highest degree of professionalism to their assignments, was kind to children, the elderly and animals, would we really care if they were gay? I know I wouldn't. (I don't really know what I would do if a gay man hit on me. I don't really know if I would know that I was being hit on by a gay man. But if a gay man stole from me, lied to me about something other than his sexual orientation, or acted unprofessionally in an assignment, that I would mind. I would mind that quite mightily.)

As a judge, Philomena Mwilu has no choice but to determine a criminal accusation based on the provisions of the law, in this case the Penal Code. If an accused person advances a persuasive argument that sections 162, 163 and 165 of the Penal Code are unconstitutional, she wouldn't need to inquire as to whether the accused was born gay or chose to go gay. If it is true that she wishes to apply this criterion to the determination of criminal complaints that is, whether or not a person was born to commit an offence or whether a person chose to commit an offence then troubling questions about her judicial reasoning are raised and even more troubling questions about the capacity of the Judicial Service Commission to properly vet the suitability of applicants to the highest judicial offices in Kenya. 

The constitutionality of a law isn't based on the congenital characteristics of those who the law will regulate, administer or punish. The constitutionality of the law is, in this case, entirely about whether it safeguards the rights of the individual against the whim and caprice of the State. That Mwilu, J, seems to have forgotten this worries me. Mightily.

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