There are a few members of our parliament who behave as if they are the first persons to come up with hate-filled legislation. They walk and talk with the certainty of men (they are almost always men) who have cracked the anti-people code. Of course, if you spoke to them, they would come across as reasonable. That what they are doing is for the public good. That they are addressing a lacuna (they love Latin expressions) in the law. That, because of the lack of moral and legislative support from their parliamentary colleagues, they are taking upon themselves the onerous and righteous task of dealing with an issue of great social necessity because if they don't, kenya will slide Ito anarchy and the children will be consigned to a life of despondency.
They are, for want of a better turn of phrase, dangerous narcissistic idiots.
Kenya's constitutional and legislative framework is remarkably broad. There isn't a subject that isn't addressed under the Laws of kenya. Even the emergent issues that are beloved of diverse constituencies, from cryptocurrency anarchists to electric car zealots, are covered by the existing legislative framework. It only takes an expansive interpretation of the existing law to see that there is very, very little outside its ambit.
The same is particularly true of the criminal law of Kenya. When it comes to sex, sexual activity, sexual offences and, yes, sexual identity, the law is broad, comprehensive, retrogressive and extremely punitive. The proposed Family Protection Bill is the dangerous, hate-filled, narcissistic legislative expression of the deepest and darkest desires of one man. It is a complete repudiation of the Penal Code, Children Act, Sexual offences Act, Criminal Procedure Code and the Bill of Rights. It purports to address a gap in the law that does not exist. It is a man's fantasy of what a legislative theocracy would look like.
That man will, if he has the support of his parliamentary colleagues, open the door for the total undermining of the constitutional rights and fundamental freedoms enshrined in the Bill of Rights. The modern road to fascism begins with the demonisation of people who do not conform to heterosexual norms. The language of Victorian England, which prevails in Kenya's criminal laws, is used to identify and target these people and if that assault is not halted by legislatures or courts, it is expanded to target political (aka "seditionists") and economic (aka poor people) communities.
Since the promulgation of the "new" constitution in 2010, the State, through diverse agents such as parliamentarians, has attempted to water down or roll back the constitutional rights and fundamental freedoms enshrined in the Bill of Rights. Bad laws have been enacted that have been struck down by the courts. Existing bad laws, the ones that preceded the promulgation (such as mandatory death sentences) have been struck down by the courts. This has led to a persistent onslaught against the independence of judges and magistrates in order to shape the character of the courts and influence, if not direct, the judgment that courts hand down. The Family protection Bill is part of a broader effort to render the Bill of Rights nugatory.
One mistake we made in 2003 was to assume that the end of the Moi presidency meant that the work of fighting for constitutional rights and fundamental freedoms was over. Mwai Kibaki initiated the process of co-opting the human rights civil society organisations that has culminated in erstwhile civil society human rights champions participating in the negation of human rights. When you take a step back and look at the big picture, you will admit that the view is terrifying. The rebels in the ministries of faith who said the things that we were afraid to say out loud are no longer there. The political rebels who fought, inside and outside jails, in Kenya or in exile, have become the lawmakers out to burn the constitution to ashes. The civil society organisations that derived their legitimacy from grassroots movements are now tools of foreign governments and agents. It will take a root and branch reform of the civil society movement to shake the political establishment from its single-minded onslaught on the constitution.
Sadly, because of the bread-and-butter issues young people face, the ongoing foreign-inspired boy-child versus girl-child discourse, the resilient poverty among Kenyans aged 25 to 35, and the non-existence of political institutions of whatever kind, there are no civil society champions to lead the fight against the likes of the promoters of the Family Protection Bill. Kenya's rebellion streak ended in 2010. Someone needs to light the tinder that will bring back the fire of the Saba Saba days.
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