On reading “Why Kenya Should Retainand Enforce its Anti-Gay Laws” by Mheshimiwa Irungu Kangata, I didn’t know whether to feel offended or laugh. As much as it was filled with facts about the legal status and the fact that having sex with minors is wrong, it was also filled with a whole load of fallacies that I am going to debunk shortly. It also smelt a lot like a political ploy. What for? We probably will never know, but I have to say this…he learnt from the best. But first, I’m going to be a tad petty (seeing as this whole thing is just that) and say that “gayism”, a word used in his statement very many times and one that the media and many other people use, is not an accepted word. The -ism suffix means “a distinctive doctrine, system, or theory”. Being gay is neither a doctrine nor a system nor a theory. It is neither a lifestyle nor a way of life. It is simply human.
Yes, carnal knowledge against the order of nature and acts of gross indecency are criminalized under section 162 and section 165 of the Penal Act, Cap 63 Laws of Kenya. I will not delve into the intricacies of what might be construed as “against the order of nature” as that will open a whole can of worms. Mheshimiwa Kangata however does imply that sex between persons of the same sex is against the order of nature. I will allow him that interpretation and say this; a gay man or a lesbian woman is not a criminal just by virtue of being gay or lesbian according to this law. The crime here will be the sexual act and unless this is proven, these people should be left to live in peace.
Which brings me to the Constitutionality of the said sections. This was your third point but I’ll make it my second as it relates to the first. Article 27 of the Constitution of Kenya states that every person is equal before the law and has the right to equal protection and equal benefit of the law. It further goes on to say that equality includes the full and equal enjoyment of all rights and fundamental freedoms. In order to link Article 27 of the Constitution to the sections of the penal code mentioned above, I will have to talk about the individual gay man and the individual lesbian woman. I will have to demystify the gay and lesbian person. I do not purport to speak for every gay man and every lesbian woman because we are all individuals and we are all different. I will however try to stick as much as I can to facts. In order to do that, I will need to debunk some of Mheshimiwa’s assertions.
Mheshimiwa asserts that all human behaviour is gene-based. This includes eating and heterosexual response. I have done a bit of a layman’s research on the subject and have found no evidence of an eating gene. Eating happens to be the body’s natural response to the need for nourishment. I have not found any evidence of a heterosexual gene. Heterosexuality just happens to be the predisposition of a majority of human beings to be sexually and emotionally attracted to persons of the opposite sex. The absence of a gene determining something does not mean that this thing does not occur naturally. It may mean that these thing is caused by a complex combination of genes that science has not advanced to the level of isolating. It follows therefore that homosexuality just might be natural. We will leave this debate to the scientists who are making great strides in trying to understand sexuality.
If you actually took the time to talk to gay and lesbian persons, a majority of them will tell you that they do not remember a time that they did not have feelings for persons of their sex. Because of the lack of a concrete scientific proof of when a person becomes homosexual, one has to go to the individual person. Something that Mheshimiwa has not done in his article. The homosexual person will tell you of the internal struggles they have had to go through due to the fact that they have been brought up in a significantly heterogeneous society and anything other than that is wrong. The struggles they have had to go through to fit in, others even going as far as getting married and attempting conversion therapy. They will tell you of the struggles with their sexual orientation that drives some of them to attempting suicide because they live in a world that does not accept them for who they are and have no control over. A majority of them will tell you that they are against murder, theft, bestiality, paedophilia and other abhorrent practices often compared with homosexuality. As a matter of fact, that comparison is slanderous to innocent people. What this comparison does, especially in relation to child abuse, is to direct attention from the real threats to children and that is a serious moral concern.
In arguing the unconstitutionality of homosexual conduct, Mheshimiwa quotes Article 45 of the Constitution which speaks about family. I’ll say this; gay men and lesbian women are ok with that Article as it is. It does not affect homosexuals in any way. That article is about a heterosexual family. He asserts that the family unit ought to be protected. I agree with him completely. After all, I am a product of a heterosexual relationship which I hope will be protected as such. That protection however does not impose an obligation on every Kenyan to form a heterosexual family unit which is what he infers when he says that the “homosexual lifestyle” diminishes chances of said individual founding a heterosexual family unit. In any society that we live in, there will always exist heterosexual persons (who are a majority) and homosexual persons. The heterosexual family has been protected in the Constitution and we are all happy with that. Heterosexual men and women may continue forming their family units. Homosexuals will attend the weddings and even plan the weddings for them. I also would like to ask, how does the homosexual lifestyle pull some out of heterosexual marriages?
On that note, and because we are still talking about the individual, I’d like to state now that a heterosexual person cannot be recruited into homosexuality. Like I said earlier, homosexuality is not a lifestyle that is chosen. If it is, then any heterosexual man or woman who can figure out the point in their lives in which they chose to be heterosexual should let us know. Because sexual orientation is not chosen and just is, then recruitment into a sexual orientation that one isn’t is an extremely ridiculous notion.
Just because society needs some people to procreate it doesn’t follow that everyone is obligated to procreate. A university professor was once told by a priest that if everyone were homosexual then society wouldn’t exist. This is an argument that has been used over and over again to belittle people fighting for the rights of gay and lesbian persons. It is an argument that Mheshimiwa has used in interviews and during the recent hate mongering anti-gay protest. The university professor responded to the priest and said, “If everyone were a Roman Catholic priest, there’d be no society either.” I bring this up because, at no point will everyone be homosexual. There will never come a time when everyone is heterosexual. We need to understand that our society is a complex mix of diversity and once we accept this fact, we will live with each other in peace.
I will now explain why I still think that criminalizing consensual same sex conduct is creating a victimless crime. Mheshimiwa lists victimless crimes to include suicide, cruelty to animals, rules relating to uniforms among others. Suicide has a victim. The person committing suicide is the victim. Cruelty to animals has victims. The animals are the victims. When two consenting adults love each other, no one is harmed. Most opponents claim that the society is the victim but I have made it clear hereinabove that the society does not suffer at all from homosexuality. As a matter of fact, within the society, gay men and lesbian women contribute to taxes, they provide services that are needed by people in the society, they are doctors, teachers, lawyers, farmers and they are necessary for the wellbeing of the society.
Having said all that, and knowing that in any society, there is inevitably going to be a minority who are homosexual, the sections in the penal code effectively criminalizes a section of the society. This essentially goes against the Constitution. Article 27 on equality for all is not applied when a section of the Kenyan society is criminalized for something that they have no control over whatsoever.
Mheshimiwa says that that homosexuality did not exist in pre-colonial Africa. He claims that it is the work of liberal writers with an apologist streak trying to rewrite African history. I would like to task Mheshimiwa to explain that statement. Who are these writers and does he have any proof of the non-existence of homosexuality in pre-colonial Africa seeing as he says this with such conviction. I would like however to quote an anthropological study that has shown the existence of homosexuality in Africa before colonization. Stephen O. Murray and Will Roscoe in their book “Boy-Wives and Female Husbands: Studies in African Homosexualities” list a broad array of instances of homosexuality in Africa before colonization; Tutsi boys during their training away from the village to become warriors often have sexual relationships together, some of which last into adulthood. Among the Iteso, people of hermaphroditic instincts are very numerous. The men are impotent and have the instincts of women and become women for all intents and purposes; their voices are feminine and their manner of walking and of speech is feminine. There are a lot more examples of instances of homosexuality in Africa and I would love for Mheshimiwa to read the book whose contributors include anthropologists, sociologists, historians, linguists, colonial doctors, missionaries and journalists.
An interesting quote in the book is one that shows how the blatant homophobia in Africa is actually what was imported from the west and not homosexuality. “What began with denial (the myth created by Europeans) has ended in a near taboo on the subject of African homosexualities – a taboo nonetheless based on European, not African, morality. The colonialists did not introduce homosexuality to Africa. Instead, the Europeans introduced intolerance of homosexuality – and systems of surveillance and regulation for suppressing it. These systems failed as long as the African reaction was to hide or deny such practices. Only when native people began to forget that same-sex patterns were ever a part of their culture did homosexuality become truly stigmatized.”
Mheshimiwa states that we are founded on Bentham’s utilitarian philosophy of “greatest happiness for the greatest number”. This is a dangerous statement coming from a person who has been elected by his people to represent them. His constituency contains people who are a minority. It contains persons living with disability. It contains albino people. It contains persons of different tribes. There is massive diversity in his constituency. Does he mean to say that the minority in said constituency are not considered? We need to protect the minority from the tyranny of the majority.