At a Crossroads: Subjective or Objective Morality?

Public opinion, which more often than not appears more nuanced, has sparked surface-level hostility in an already heated sexual orientation debate. On one side, the meritorious, high-minded, and self-proclaimed guardians of morality have adopted the Judeo-Christian approach to argue that recognition of the LGBTQI groups in Kenya will be a catalyst for moral erosion in the country. 

On the other hand, liberals have embraced and pushed for LGBTQI group recognition, citing that denying them this right is tantamount to discrimination and persecution. Human dignity, as enshrined under Article 28 of our Kenyan Constitution, has also been invoked by the faction that champions the recognition of this group. These heated debates have consequently translated into gross human rights violations being reported to various human rights organizations both in Kenya and regionally. However, the common rhetoric remains "How should we perceive sex and gender; is there a distinction?"

Cracking the nut; definition of terms
Gender, as we both know it, is a social construct. That is to say, it encompasses societally constructed expressions, assigned roles, and behaviours that ultimately diversify people who identify as males or females. On the other hand, sex, as defined by the World Health Organization, refers to the different biological and physiological characteristics of males and females, which include their reproductive organs, hormones, and chromosomes. From these definitions, it suffices to say that, though interrelated, there exists a thin line between gender and sex in that, the former, when looked at and analyzed from the legal lens, encompasses human bias as to an individual’s perceived self-image, behaviour, and expression, distinct from the traditionally associated label assigned at birth, which in this case is the latter.

State treatment
Various legislative provisions in Kenya, such as the Penal Code, amplify Kenya’s position and that of the government in matters pertaining to sexual orientation. Section 162 of the Penal Code criminalizes what it terms "acts of gross indecency and carnal knowledge against the order of nature." Violations of this provision carry prison sanctions under Section 163. Despite the outright outlawing of these acts, those who feel aggrieved and have had their rights violated have nonetheless continued to practice them. Constant reports of discrimination and high-profile attacks have been reported. 

For instance, the state has perpetuated the use of forced anal examinations, which is illegal, as seen in the case of COI and Another v. Chief Magistrate Ukunda Law Courts & 4 others [2018]. Kenya has also experienced an array of significant legal challenges in its quest to criminalize the interactions and relationships of LGBTQI people and their organizations. The Kenyan government, through its immediate former head of state in the recent past, unequivocally declared its position in this matter in an interview, stating that "I won’t engage in a subject that is of no importance to the people of Kenya." "This is not an issue of human rights; this is an issue of our own base as a culture and as a people, regardless of which community you come from." 

Constitutional petitions have since been lodged challenging this position, yielding legal developments in the country. A recent ruling by the Supreme Court allowing an NGO affiliated with the LGBTQI community to be officially registered as a non-governmental organization has, however, sparked various emotions from various groups and especially the state. 

Similar sentiments have been shared by H.E. William Ruto, who recently categorically stated his position and that of the government: "We respect our courts, but our traditions and beliefs do not allow same-sex relationships." That will not happen in Kenya (emphasis added), as they do not conform to the country’s traditions and beliefs. It is therefore clear that the homophobic legacy of the Kenyan president not only justifies but also reinforces the state’s anti-queerness by rebranding a secular state as a Christian state through his words, "The Republic of Kenya is a republic that worships God." "There is no room for homosexuality in Kenya." Aware of the various violations to which it subjects its citizens who have identified themselves as LGBTQI, the state, though able, is unwilling to offer adequate and effective protection that an ordinary citizen is unable to avail himself or herself of.

Societal treatment
Kenyan societies, through their norms and culture, have been generally conservative and intolerant in their attitude toward the treatment of LGBTQI persons. To this extent, they have termed it a Western import that finds no moral basis or support in Kenya. LGBTQI people have hence been victims of various human rights violations, including discrimination, harassment, and assaults, which at times stretch to violent attacks on their persons and personal property. These high levels of intolerance have led to high levels of unemployment among these groups of people due to the continued discrimination that they face in the employment field. 

Attacks on these groups have also been reported; for instance, in June 2018, a union of two members identifying themselves as LGBTQI was dubbed Kenya’s first "Pride," held at Kakuma refugee camp. Organizers of the event reported receiving death threats following the event. However, on the flip side, there exists another group in society whose attitude towards this group takes a different path from the majority. In 2016, a survey conducted indicated that 53% of these Kenyans were of the view that homosexuality should not be considered an offence, while 43% indicated that they had no interest in the sexual orientation of their neighbour. The same report indicated that tolerance levels varied within communities, with greater tolerance in the capital, Nairobi.

It is important to note that in Erick Gitari v. Attorney General & Another [2019], which criminalized homosexual acts between two consenting adults, the court indicated that one of its duties is to preserve the national values as enshrined under Article 10 of the Constitution, which underscores the general societal views, values, and norms of the Kenyan society at large. The defence (government) also alluded to the fact that sex same relationships, as argued by the petitioners, were offensive owing to the fact that they were contrary to Kenyan morals and Kenyan culture as a whole. Natural law theory has also been used to advance similar arguments. This theory posits that our legislative laws should conform to the superior law as ordained by God. This superior norm dictates that rules must have morality and that human beings possess intrinsic shared values that govern their behaviours. Articles 10 and 11 of the Constitution have been cited by proponents of this theory, holding that law cannot be properly understood without the precepts of morality and national values and culture, respectively. To this extent, LGBTQI people find no basis in Kenyan culture due to these natural inclinations. 

However, a pertinent issue that still bedevils us is; how should we reconcile the fact that natural law theory binds in two ways; in our conscious and coercively in the form of divine punishments, and the fact that morality manifests in the form of a conscience that is made up of basic principles that inform the way we behave? Is conscience subjective or objective?

Glorious Gain
Activists, liberals, and various non-governmental organizations, such as the Gay and Lesbian Coalition of Kenya, have been challenging the legislative provisions enshrined under Sections 162, 163, and 165 of the Penal Code. They firmly hold that the anti-homosexuality laws are colonial dictates that should be repealed. These arguments have, however, met swift and widespread backlash from the majority of Kenyans. These pro-LGBTQI groups have argued for very fundamental concepts and rights as enshrined in our Constitution, though on the face of it, they may appear void to hard naturalists and custodians of morality. Some of the fundamental arguments brought forth include violations of human rights and cruel and inhumane treatment, which include:

Discrimination and violence
Article 27 of the Constitution provides for equality and freedom from discrimination; in particular, sub-article 4 provides that the state shall not discriminate directly or indirectly against any person on any ground. The constitution goes on to delineate the various grounds on which the state shall not discriminate against individuals, among them sex, conscience, and belief. Various reports, such as the USSD 2019 report, reported high-profile violence and discrimination in various parts of the country. 

For instance, the report indicated that in 2019, a certain school in Mathira constituency abused 32 girls for allegedly identifying themselves as lesbians and prohibited them from taking their end-term examinations. Social stigmatization, isolation, and discrimination have resulted in undetected mental health problems among these individuals. Cases of rape and physical assault, as alluded to by Erick Gitari, working with the National Gay Lesbian Human Rights Commission, have also been reported in Nairobi, despite the capital allowing them to be anonymous. Some of the most elaborate incidences of physical violence and discrimination include:

Edwin Chiloba's murder
In January, Edwin Chiloba, a fashion designer and an LGBTQ activist, was murdered in cold blood in Uasin Gishu. LGBTQI activists’ critics across the globe reproached this heinous act, tying it to the deceased’s sexuality. They also condemned the government’s failure to tackle this deficiency that has crippled the fundamentals of human rights. The Directorate of Criminal Investigation wasn’t spared either by the National Gay and Lesbian Human Rights Commission, as it was condemned for its slackness in the investigations to establish the motive.

Sheila Lumumba and Rose Mbesa’s 2022 murder
In April 2022, a non-binary lesbian, Sheila Lumumba, was found dead in their home in Nyeri. Homophobia and high levels of intolerance against queer people were cited by the National Gay and Lesbian Human Rights Commission as the only motive for her death. In the same year, Rose Mbesa, an intersex lady from Trans Nzoia, was also found murdered, with investigations revealing that homophobia was the sole motive.
Similar incidents have been reported, including the torture and strangulation that led to the death of Joash Mosoti, a gay activist in Mombasa in 2021; the gross violation of human dignity by the police in obtaining evidence in Mombasa; and even actual death threats pinned all over Kakuma camp after an LGBTQI pride event in 2018. To this extent, the police force has been seen as ineffective in providing general assistance to these vulnerable groups. The Independent Policing Oversight Authority has also been considered a toothless bulldog due to its lack of accountability and effectiveness in investigating and pursuing various complaints lodged before it.

Out of Distress to Jubilant Psalm?
Recently, the Supreme Court of Kenya in the case of NGOs Coordination Board v. Erick Gitari and 4 others [2023], allowed the National Gay and Lesbian Human Rights Commission to be registered as a non-governmental organization. This apex court ruled with finality, bringing to an end a matter that has lasted in the corridors of justice for a decade. While delivering the judgment, the court held that "it would be unconstitutional to limit the right to associate through the denial of registration of an association, purely on the basis of the sexual orientation of the applicant." The court also noted that "given that the right to freedom of association is a human right, vital to the functioning of any democratic society as well as an essential prerequisite to the enjoyment of other fundamental rights and freedoms, we hold that this right is inherent in everyone irrespective of whether the views they are seeking to promote are popular or not."
Despite the existence of clarity on this matter, homophobic attitudes are still prevalent in Kenya. The constitution of Kenya has dedicated an entire Chapter 4 of the Bill of Rights to every citizen. The drafters, being informed of the dark Kenyan history in which we, unfortunately, find ourselves once more, had this in mind when coming up with this chapter, which is the largest in the Constitution. The provisions in the form of grants therein are to be protected, promoted, and implemented by the state in order to actualize their full potential. Being a democratic society, these constitutional rights, by dint of Article 24, and after considering conflicting priorities, may only be restricted by a necessary reason that is by nature justifiable, ultimately making a proportionality-based judgment.

Devaline Rioba is the Head of Law Review at UNLJ, he also doubles up as a law review editor at UNLJ. He can be reached through email: riobadevaline@gmail.com or phone number: 0702675270