No, gay rights is not a non-issue

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Jared Juma

President Uhuru Kenyatta’s dismissal of the gay rights debate as a non-issue in Kenya must have earned him a lot of admiration from home and a section of the extremely conservative African states. Add that to the fact that his sentiments came flat across the face of his visiting American counterpart, President Barack Obama, and it gets easier to see how much political mileage he scored.

But there are obvious contradictions or weakness inherent and apparent in the arguments in the rebuttal that needs to be pointed out now that the dust seems to have settled on the matter. Otherwise a good slogan may forever postpone analysis. Let me make it clear from the outset that I am not a supporter of homosexuality. In fact, if it were up to me, the world would have none of them. But that is as far as a wish can go.

President Obama’s visit had been preceded by pockets of peaceful protests to push him into being silent over the questions of homosexuality; but when “Ja’Kogelo” finally arrived and the hour was ripe, he minced no words. Aware that his message would get very limited welcome, he said it all the same.

Asked by a foreign journalist, President Obama just spoke what is already in our written laws “…I have been confessing all across Africa, that I believe in the principle of treating people equally under the law, and that they are deserving of equal protection under the law… and the state should not discriminate people based on their sexual orientation… I say this knowing that there may be people with different religious or cultural beliefs.”

From the face of it, it is true that the Constitution of Kenya under Article 27 and extended interpretation of Article 10, with its numerous provisions, prohibit any form of discrimination by the state. A further reading of Article 20 of the Constitution suggests that even private persons are also bound to honour the rights and dignities of all people. This is the notion of vertical as well as horizontal application of bill of rights. It has been gaining popularity following the belt and brace approach that the Constitution of Kenya adopts in securing the Bill of Rights.

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President Barack Obama’s message was therefore about inclusivity and tolerance to diversity, rather than a blanket campaign for or against gay and lesbian people. He observed that if there is a person who goes about their business peacefully and without harming others and obeys all the other laws that bind all the citizens together, it’s not really the business of the state to dictate how they can love, and who they can love since that is a private matter. He quipped:
“If somebody is a law abiding citizen, who is going about their business and working on their jobs, obeying traffic signs, and doing all the other things that good citizens are supposed to do and not harming anybody, the idea that they are going to be treated differently because of who they love is wrong, full stop!” He added “the state does not need to weigh in on religious doctrines.”

But his host, President Kenyatta, also got the moment in full of all the international television cameras on him to state what is supposed to be the “Kenyan Position”.

“The fact of the matter,” the President stated, “is that Kenya and the United States share so many values; value for families, our common values for democracy and, entrepreneurship …, but there are other issues that we must agree that we do not share. We want to focus on health, issues, issues of inclusivity of women, infrastructure, encouraging entrepreneurship…”

But when these two competing arguments are pitied against each other, glaring gaps begin to reveal. Take Mr Kenyatta’s assertion, for example, that Kenya is still miles below the levels of the US in terms of political and economic achievements, and that it is premature to channel any energies or resources to think about the plight of lesbian, gay, bisexual, transgender, inter-sex, and questioning gender (LGBTIQ) individuals.

First of all, there are people who, right from birth, are not easy to distinguish whether they are male or female. They grow up as questioning gender or queer gender. They are non-conforming in terms of the gender variance, or gender conformity, behaviour. But they too need to go to schools and advance and get work and contribute to nation building, and help in the areas that were espoused by President Kenyatta as the priority areas in national development, such as improving health care and infrastructure.

If they happen to be in business, or motoring, then they too need to be issued with trade or driver’s licences, and be taxed for the general good of running state affairs. But what happens to them once the President has dismissed them and their prominent lot (gays and lesbians) as a non-issue?

The immediate reaction from the society is that they are mocked and cannot fit in any conventional schools. They will also, as a result of the trauma and stigma borne out of their “otherness”, not pursue or develop their full talents, with the result that their self esteem and psyche is repeatedly hurt, thus hindering them from realising their full potential. And therein is the trouble.

Realisation of their full potential is directly connected to the time that it will take all of us as a country to achieve our independence dream that the President has prioritised.

Whether we have serious health concerns and serious economic dreams to achieve, we must never pretend that all of us have a simple gender classification. We must not pretend that those who love differently do not belong to this country.

President Kenyatta’s dismissal of their lot only rekindles our collective memory of retired president Daniel Moi who, in the beginning, treated people with HIV/Aids contemptuously as a group that were suffering from their own infidelity and careless sexual behaviour. That attitude has not helped to remedy the national view that has imposed serious stigmatisation on persons living with HIV/Aids.

Non conforming gender people have existed historically and however much we dislike them, we simply cannot pass a legislation to kill all of them because we want to remain in a straight world. That would be utopia. It remains for science to explain how they came or come about. They have however been subject of ridicule. They therefore have very limited expression of how they feel. They are beings that are human nonetheless, and deserving rights equal to the conventional gender. Unless they adopt a more vibrant approach towards seeking recognition as they are, rather than as society would want them to be, then there is serious risk that the questions that President Kenyatta had given priority will not be realised within set timeframes. This is because they too belong, and they too make a contribution that counts.

A Nairobi transgender activist shocked many when she won victory from the High court of Kenya to compel Kenya National Examinations Council to stop marking her gender as “male” in her academic certificate. She also got orders compelling the national exam body to, at the same time, time change her name from “Andrew” to “Audrey”. One may argue that such victory is mere academic and would not stop her from living her life as she wishes. But that is a short term argument of convenience. In reality, Audrey can now comfortably tender an application for a vacancy that wants a female candidate and may not suffer a lot of unwarranted scrutiny in the process of being interviewed. That essentially increases her chances of participating in nation building and increases the national pace of realising the dreams President Kenyatta talked about as priority areas for Kenya.

As I turn to address the question of gays, I reiterate that they too would be deserving of equal treatment before the law. As President Obama put it that day, when government gets in the habit of treating people differently, those habits start to spread and are more likely to find expression in other spheres of life that are not occupied by the sexual minorities in a country. “The idea that they are going to be treated differently or abused because of who they love is wrong,” he emphasised.

The question here is that people who love conventionally or whose sexual orientation is taken as normal, and who make love according to the “natural order” benefit from preferential treatment and receive positive biases from public facilities and public officers.

One example was explained by a male sex worker belonging to the category of men sleeping with men (MSM). He had been suffering from anal gonorrhoea but the health officer declined to attend to him saying the manner in which he had contracted the disease went against his religion. But how did religion come in to the medical practice as at such time? Such are the times that the medical practitioner is seen to have imported religion where it was not needed.

When such discrimination is not talked about, then it is true that they tend to spread. That is why one finds habit in the schools staff departments where departmental meetings can be held in one vernacular language dominant in the school without minding that there is a minority who is not able to contribute in such a language.  The would-be contribution of such minorities will consequently be lost.

It gets worse when addressing questions of struggle for chances. Similarly, when the president dismisses the plight of a minority group as being a non-issue, he exposes them to vilification by the law enforcement agencies and other people who should uphold their dignity. In sections of Mombasa County, police continually harass the sex workers. But those in the category of MSM are also under attack from certain religious bodies. Whereas there is no law that provides for them to be killed, such sentiments as were made by the President have served to increase extremism and violence against them.  It even becomes easier for the law enforcement agencies to use such incidences to extort money from young men rounded up from the streets. They are at times threatened with possibilities of facing charges related homosexuality if they do not “buy their freedom”.

But even as the President of the United States spent energy belabouring the plight of the sexual minorities, there is one aspect of culture that failed him. It is called moral relativity.

It relates to a situation of absence of standards of absolute and universal application of a phenomenon. President Obama said that “those who obey traffic signs and do not harm others, if they are of happen to love differently, then there is no need to treat them differently”. In the United States, failing to obey traffic signs is a serious offense. Tax evasion is quite another offense taken very seriously because of the history of discipline of civilians that has been being inculcated as a culture in the western. Nairobi motorists, with their lack of discipline, rarely see violating a road sign as an offense; those who evade taxes are seen as heroes in the eyes of the people for having the might to evade the long arms of the law. Perhaps Potus could have used other offenses like genocide or those who sell drugs to school going children. Those really are the offenses that if mentioned in Kenya, would appear to disturb the conscience of humanity. Perhaps then, his message could have acquired the requisite weight.

Writer is an Advocate of the High Court of Kenya

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