Contextualising and Advocating for Sexual Minority Rights within Kenya’s Transformative Constitution

Author: Laureen Mukami Nyamu
Student, Kabarak University School of Law in Nakuru, Kenya

Human rights are inherent to all human beings regardless of race, ethnicity, nationality, religion or other status [1] moreover they are universal but the universality of human rights is not enjoyed by sexual minorities due to discrimination. This discrimination stems from religious, socio- cultural, institutional and discriminatory laws and policies. These factors hamper the full enjoyment of human rights by sexual minorities.

The Constitution of Kenya 2010 is transformative in the realm of human rights by recognising the bill of rights as an integral part of Kenya’s democracy, social, economic and cultural policies and by having an elaborate Bill of Rights that remedies the subversion of human rights which was a characteristic of the repealed constitution. [2] This article will contextualise and show advocacy of sexual minority rights within the constitutional framework and provide a way forward as regards sexual minority rights.

Contextualisation

The Constitution of Kenya 2010 (hereinafter referred to as the Constitution) contains the following provisions in the bill of rights that shall be contextualised in the realm of sexual minority rights.

Every person has the right to life.[3] The term ‘every person’ when interpreted includes sexual minorities. This provision protects sexual minorities from the arbitrary deprivation of their life on account of their sexual orientation.

Every person is equal before the law and has the right to equal protection and benefit of the law.[4]  Equality includes full and equal enjoyment of rights and fundamental freedoms.[5] Sexual minorities should enjoy equal protection of the law to the same extent as other persons who are not sexual minorities. The state [6] and any person[7] is prohibited from discriminating against any person a various grounds among them being sex. The constitution also obligates the state to take legislative and affirmative action measures to redress any disadvantage suffered by individuals or groups because of past discrimination.[8]

Every person is afforded dignity and the right to have that dignity respected[9]. Respect of human dignity includes the respect to the bodily integrity and autonomy of the person. Sexual minorities often face violations to their dignity through the use of violence against their bodies and use of derogatory language against them. [10]This provision therefor entrenches and protects the right to dignity of sexual minorities.

The right to Freedom and security of every person includes the right not to be subjected to any form of violence[11] and torture. [12]This provision protects sexual minorities who are often the victims of violence and brutalities from their communities.

Advocacy

The Constitution advocates for sexual minority rights by establishing duties of the state regarding human rights which include; the duty to protect, promote, respect and fulfill rights and fundamental freedoms. [13] The constitution also gives everyone the right to institute court proceedings when a fundamental right and freedom has been violated.[14] Further, the courts in the application of a fundamental rights and freedom are obligated to adopt the interpretation that most favors its enforcement[15] as seen in the case of Eric Gitari v Non-Governmental coordination organisations coordination board and 4 others [16] whereby the court held that the term every person under article 36(1)[17] does not exclude homosexuals and the petitioner who was intending to register the Gay and Lesbians Human Rights Council with the respondent falls within the ambit of article 36 (1) of the constitution. This position therefor demonstrates that sexual minorities are entitled to not only the freedom of association but also all fundamental rights and freedoms stipulated under the constitution regardless of their sexual orientation.

The Way Forward

To achieve and promote sexual minority rights, the existing constitutional provisions should be interpreted in a manner that favors their realisation. This could be achieved by the inclusion of the term ‘sexual orientation’ as one of the  protected grounds under article 27(4) [18] This would enlarge the scope of protection of sexual minorities by expressly prohibiting discrimination on account of sexual orientation. Additionally the right to marry should be accorded not only to persons of the opposite sex [19] but also to persons of the same sex. Family is the basic and most crucial unit of society. Recognising the right to marriage by persons of the same sex will lead to the realisation of their rights by granting their sexual orientation legitimacy and acceptance in the society. This will contribute towards ending the social stigma that often contributes to discrimination and the subsequent infringement of their rights.

[1] Professor Naresh Vats, Gender Equality-Human Rights violations against sexual minorities.

[2] Article19 (1) Constitution of Kenya 2010.

[3] Article 26(1) Constitution of Kenya 2010.

[4] Article 27(1) Constitution of Kenya 2010.

[5] Article 27(2) Constitution of Kenya 2010.

[6] Article 27(4) Constitution of Kenya 2010.

[7] Article 27(5) Constitution of Kenya 2010.

[8] Article27 (6) Constitution of Kenya 2010.

[9] Article 28 Constitution of Kenya 2010.

[10] J Osogo Ambani, a Triple Heritage of Regulating Homosexuality in Kenya.

[11] Article 29(c) Constitution of Kenya 2010.

[12] Article 29 (d) Constitution of Kenya 2010.

[13] Article 21(1)

[14] Article 22(1) Constitution of Kenya 2010.

[15] Article 20(2) (b) Constitution of Kenya 2010.

[16] 2015 eKLR

[17] Every person has the right to freedom of association which includes the right to form, join or participate in the activities of an association of any kind.

[18] Constitution of Kenya 2010.

[19] Article 45 (2) Constitution of Kenya 2010

About the Author:

Laureen Mukami Nyamu is a second year undergraduate student at the Kabarak University School of Law in Nakuru, Kenya. She is interested in examining how human rights can be used to remedy disadvantages experienced by minorities as a result of discriminative policies and norms and how the law can redress these disadvantages.