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Human Rights

The Struggle for LGBTI Rights in Kenya – Professor Ambreena Manji

9 December 2015

Last week, Cardiff’s Watch Africa film festival ended with a screening of Stories of Our Lives, a film made by the Kenyan Nest Collective. I spoke after the screening to draw out what I saw as its key themes and to locate the film in the broader context of the struggle for LGBTI recognition in Kenya.

Having won prizes at the Toronto film festival, the film was banned by the Kenya Film Board for promoting homosexuality. Throughout the film, which takes the form of a series of short vignettes, it was striking that the theme of fleeing was prominent. Characters fled their own sexuality, fled from violence and discrimination, fled from unrequited love for the same sex. The theme of flight and of exile is, I pointed out after the film, central to Kenyan political and social life. If it were available to watch in Kenya, the theme of sexual exile so beautifully explored in Stories of Our Lives would resonate with an audience for whom political exile and flight from repression will be familiar, recurring themes of the nation’s postcolonial history. In an interview after the Toronto screening the filmmakers talked poignantly about making provision to flee, on their return home, if they found they were in danger.

In my talk I also sought to point to positive changes from which we might take hope for the struggle for LGBTI rights. The struggle of Kenya’s National Gay and Lesbian Human Rights Commission for registration as an NGO, denied since 2012, has recently resulted in a successful Constitutional petition in High Court. The matter is now before the Court of Appeal but it might be that Kenya’s judiciary – the one institution in which Kenyans place some faith- leads the way in confronting the anti-gay agenda.

Quotidian homophobia has played a key role in Kenya in recent years. The country has proved to be fertile ground for a culture war, with those wishing for a progressive society very much on the back foot. The evangelical right has spread its tentacles across from Uganda where it opened offices and worked to promote the Bahati Bill to make homosexuality punishable by death, to Kenya. During the struggle for a new Constitution, the Christian right did all it could to ensure a heteronormative Constitution, putting the family at its centre, and emphasising reproduction as a core value. We saw this approach once again during President Obama’s July 2015 visit to Kenya – just after the US Supreme Court’s same-sex marriage decision. During the visit, ‘stand with the family’ protestors argued that if Obama wanted to promote development, and the family is central to development, then he must speak out against gay rights.

Although the Constitution of Kenya 2010 does not provide for equality in relation to sexual orientation, some have argued that its provisions give us a good starting point for challenging anti-gay law and practice. For example, Article 2 provides that the general rules of international law are applicable in Kenya; Article 10 sets out national values and principles which include dignity, equality, social justice, and non-discrimination; Article 19 provides rights and fundamental freedoms; and Article 20 provides for that legal interpretation that most favours the enforcement of a right or fundamental freedom.

When the new Constitution, which the Chief Justice has described as a transformative Constitution, was promulgated in 2010, it was thought there would very soon be a challenge to the constitutionality of the Kenya Penal Code 1963 which inscribes anti-homosexuality in law. This has not yet happened. It is important to remember that anti-homosexuality has its roots in the anti-sodomy laws of the colonial period. Until the Penal Code’s provisions in this regard are removed, for gay Kenyans it is ‘not yet Uhuru’ (freedom).

A further important development of recent years has been an African Commission on Human and Peoples’ Rights 2014 resolution (resolution 275) condemning violence based on gender and sexual identity. This has been hailed as an emerging, African approach to fighting homophobia that should therefore have considerable legitimacy.

In Kenya, Binyavanga Wainana has pointed out, ‘homophobia is seasonal’. It is used to distract citizens from corruption, from economic mismanagement and from the deliberate work of the elite to mobilise ethnic hate.

To confront the anti-gay agenda in Kenya, progressive groups will have to build broad coalition, working with trade unions and others to show how gay equality and other progressive aims are intimately connected.

Further Reading

Ekine, Sokari and Hakima Abbas eds. (2013) Queer African reader Dakar, Nairobi & Oxford: Pambazuka Press.

Kenya Human Rights Commission (2012) The outlawed amongst us: a study of the LGBTI community’s search for equality and non-discrimination in Kenya(Nairobi: KHRC).

Mutua, Makau W. (2012) ‘Sexual orientation and human rights: putting homophobia on trial’ SUNY Buffalo Law School Research paper.

National Lesbian and Gay Human Rights Commission (2015) ‘Inclusion of LGBTIQ concerns in President Obama’s visit to Kenya’ Letter to US Ambassador Robert F Godec, 22 June.

Oluoch, Anthony Blog: a queer Kenyan’s questions

Tamale, Sylvia (2012) African sexualities: a reader (Oxford: Fahamu Books).

Wainaina, Binyavanga (2014) ‘I am a homosexual mum’ in Kwani? (Nairobi).