Dear Right Honorable Raila Odinga, Prime Minister of Kenya:
You were quoted in the media this week:
We will not tolerate such behavior in the country. The constitution is very clear on this issue and men or women found engaging in homosexuality will not be spared... Any man found engaging in sexual activities with another man should be arrested. Even women found engaging in sexual activities will be arrested.
These sentiments may be overwhelmingly popular with a majority of Kenyans. But if true then you misspoke on at least four levels. Let us start with the constitutional level.
The new constitution of Kenya does not decree the arrest of homosexuals. Article 45 states “Every adult has the right to marry a person of the opposite sex.” It is completely silent with regard to any state or private intervention against the homosexual community. In fact, to the contrary, Article 27, which provides for equality and freedom from discrimination provides that “Equality includes the full and equal enjoyment of all rights and fundamental freedoms,” while Article 28 states that “Every person has inherent dignity and the right to have that dignity respected and protected.”
To target a people for who they are is discriminatory and undermines their inherent dignity and rights. In an op-ed published in the Washington Post March 12, 2010, titled “In Africa, a Step Backward for Human Rights,” Archbishop Desmond Tutu surmises:
No one chooses to be gay. Sexual orientation, like skin color, is another feature of our diversity as a human family. Isn't it amazing that we are all made in God's image, and yet there is so much diversity among his people? Does God love his dark- or his light-skinned children less? The brave more than the timid? And does any of us know the mind of God so well that we can decide for him who is included, and who is excluded, from the circle of his love?
The second level at which you misspoke arises from the provisions of the Penal Code, Chapter 63 of the Laws of Kenya. First, the Penal Code is subject to the Constitution so where it is inconsistent with the Constitution it is, under Article 2(4), “void to the extent of the inconsistency.” Second, the Penal Code under section 162 prohibits carnal knowledge of another person “against the order of nature”; carnal knowledge of an animal; and the granting of permission to a male person to have carnal knowledge of one “against the order of nature”. Under section 165, the Penal Code prohibits male persons from attempting, procuring or committing an “act of gross indecency” whether in public or private.
Quick point here: being a homosexual is not in itself prohibited. Rather, it is having carnal knowledge of a person that is “against the order of nature.” But what is “against the order of nature”? The Biblical creation story is often used to argue that the order of nature was that God created Adam had Eve and not Adam and Steve. But where would such Biblical misrepresentation place persons of “ambiguous” sexual identity as the case of Castor Semenya demonstrated? Are they to be cast out and trampled underfoot because they may have both genitalia of men and women which, because we had only Adam and Eve, would be “against the order of nature”? What really does “order of nature” mean? Was it the “order of nature”, for instance, that Biblical Eve chose to eat the forbidden fruit and not the snake as perhaps someone with more exploratory culinary tastes would have done? Does this mean that we should today crucify those who find relish in dishing on snakes?
My point here is that there are some very nebulous terms in the law that can mean nothing, anything or everything. And the term “act of gross indecency” would also fall under this rubric. For example, how are we to categorize oral or anal or multiple-partner heterosexual trysts? We need to recall that these terms migrated here with our colonial masters straight out of Victorian England. But we are now in the twenty-first century.
The third level at which you misspoke is the social level. Here, you will find virulent homophobia spewing out of many religious groups and denominations: the kind of bilious hatred one heard when, for example, cabinet minister Esther Murugi recently called for tolerance and understanding of the gay community. Note that this kind of venom is never heard when coarse and debilitating social ills such as tribalism, corruption, mindless social violence, and so on are reported. But that is a point for another day.
The issue here is that this holier-than-thou religious posturing has, as Archbishop Tutu observed, “no place in the House of God. No one should be excluded from our love, our compassion or our concern because of race or gender, faith or ethnicity—or because of their sexual orientation.” After reflecting on the historic struggle against apartheid, Archbishop Tutu implores in his op-ed from last March:
It is time to stand up against another wrong... Gay, lesbian, bisexual and transgendered people are part of so many families. They are part of the human family. They are part of God's family. And of course they are part of the African family. But a wave of hate is spreading across my beloved continent. People are again being denied their fundamental rights and freedoms. Men have been falsely charged and imprisoned in Senegal, and health services for these men and their community have suffered. In Malawi, men have been jailed and humiliated for expressing their partnerships with other men. Just this month, mobs in Mtwapa Township, Kenya, attacked men they suspected of being gay. Kenyan religious leaders, I am ashamed to say, threatened an HIV clinic there for providing counseling services to all members of that community, because the clerics wanted gay men excluded.
Lastly, you also misspoke at the level of your personal and political history. You have been the longest serving political detainee in Kenya; persecuted for your beliefs. You have also been constantly politically excluded and derided for being Luo; accused of not being worthy of leading Kenya because the Luo do not circumcise their male children.
In short you have faced personal and political persecution, odium and affront for who you are. In the same vein, Barack Obama has urged, “But surely we can agree that it is unconscionable to target gays and lesbians for who they are.” Why then would you be the one to cast the first stone against the gay community?