Why homosexuality and same sex marriage should be allowed in Kenya

Even though the debate continues on whether Kenya deserves to legalize homosexuality, to recognize gay marriage and to accord equal rights for all persons who are gay, lesbian, transgender, bisexual or intersex, a precedent in Africa was already set by South Africa. Other countries like Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, the United Kingdom, Ireland, the United States and Uruguay have already amended their laws in order to allow same sex couples to marry.

The decision by these countries to legalize same sex marriage, whether by judicial, parliamentary or popular initiative means, was necessitated by a number of reasons. The most important of these is the need to recognize the inherent universal dignity for every human being around the globe and the legal requirement to have this dignity safeguarded and respected. They were prudent enough to look beyond the religious, cultural, societal, political and economic inclinations that have subverted the ultimate goal of humankind to achieve equity, equality and ultimate happiness for all.

In Kenya, the biggest challenge that the LGBTIs face is social stigma. Those who come out of the closet are regarded as social outcasts just because they are different. Nevertheless, quoting Dorothy Parker, “Heterosexuality is not normal, it's just common.” This is the message that should be directed to every bigot that attempts to condemn the LGBTIs for their identity and orientation. There have been cases of homosexual persons being denied employment, being evicted out of their homes and some being brutally raped in misguided attempts to ‘reverse’ them to heterosexuality. This social stigma makes the LGBTI persons to see themselves as victims and those against them as the persecutors.

The High Court ruling that compelled the NGO Coordination Board to register an advocacy group for people of the same sex should be an impetus for the LGBTI community to come out of the closet and demand for their rights. The High Court recognized the universal and inherent dignity of every person and the utmost need to have that dignity respected. Second, it upheld the indispensable freedom of association for every individual in the country so long as it was within the confines of the Supreme Law. Third, it upheld the inalienable Constitutional stipulation of non-discrimination of any person on any grounds, including sexual orientation in this case.

Legalizing same sex marriage in Kenya would be a very intricate task to achieve though.  Article 45 of the Kenyan Constitution that deals with family defines marriage as an act of free consent based on adult persons of the opposite sex. The difficulty comes in that it would require a referendum under Article 255(1) (e) to amend the Bill of Rights, of which Article 45 is part.

It is therefore a violation of the rights and freedom of the LGBTIs to fully appreciate, explore and have the benefit of or take pleasure in their sense of identity, if it all requires a referendum, the will of the majority, to achieve that. With a big percentage of Kenyans being against homosexuality (and others homophobic towards LGBTIs), the sense of legalizing or giving the LGBTIs a larger space to benefit from their inherent and achieved freedoms and rights remains a mere pipe dream in this country.

Nevertheless, people ought to look beyond the sexual behavior associated with homosexuality and delve deeper into the sexual identity (appreciation of a person’s sexuality) and sexual orientation (sexual attraction to people of the same sex). The way people decide to have sex should not be a threshold to deny them their rights and privileges. There is more to a person beyond sex and that is the feeling of belonging to a community.

In Kenya, bodies such as the National Aids Control Council and the Kenya National Commission on Human Rights have previously recommended that the government amend sections 162 to 165 of The Penal Code. Some elements of these sections are considered hostile to the LGBTI community in Kenya and make them vulnerable to both legal and public assault.

Lastly, looking beyond the optical illusion, you will understand that LGBTIs are wonderful human beings deserving of love, passion and companionship, just like any heterosexual persons.