Freedom in Speech

Written by Admin Tuesday, 15 May 2012 13:11

Kenya National Commission on Human Rights recently released a report with proposals seeking better integration of lesbians, gays, bisexuals, trans-gender and inter-sexed (LGBTI) persons in Kenya.

This has reignited the debate on whether homosexuality and other non-abusive forms of sexual variance should be decriminalised. And with it the debate also re-opens to challenge the jurisprudence of ‘legal moralism’ which is the view that the law can legitimately be used to prohibit behaviours that conflict with society’s collective moral judgements even when those behaviours do not result in physical or psychological harm to others.

Supporters of legal moralism, such as Patrick Devlin, argue that society is not something that is kept together physically but it is held by the invisible bonds of common thought. If the bonds were too far relaxed, the members would drift apart. A common morality is part of the bondage.

The bondage is part of the price of society; and mankind, which needs society, must pay the price. Thus it follows that from the necessity of a shared social morality it is permissible for the State to legislate sexual morality, including same-sex sexual relations.

However, not all agree with this theory and its opponents argue it exaggerates the extent to which preservation of a shared morality is necessary to the continuing existence of a society. They argue it is implausible to think that deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of the society.

New dispensation

In our present debate, of the groups that condemn the KNCHR report is religious leaders. However, the hard question is whether criminalisation of consensual sexual acts among this category of our population remains tenable in the new constitutional dispensation and whether there is any justification for the continuing bashing of the group.

The Penal Code, Sections 162,163 and 165 still criminalises the so-called ‘unnatural acts’. These legal provisions, with origins from colonial laws in essence take sides, that is privileging heterosexuality over homosexuality. Yet supporters of homosexuality have argued that to proscribe same-sex relations is to limit sex and sexuality to the conventional reproductive role, ignoring other aspects such as pleasure and desire intrinsic to sexuality.

The other hard question is whether religious grounds of opposing homosexuality hold any water. Most of our criminal laws find congruence with most prohibitions among the major religions such as Christianity and Islam. In fact the Bible expressly prohibits homosexuality in Leviticus 18:22 do not lie with a man as one lies with a woman; that is detestable. But can such be grounds to shun LGBTI persons when our Constitution at Article 8 provides that there shall be no State religion, effectively making ours secular State?

The current subject of homosexuality poses several tests to us as a society. First, is the test of diversity within the context of our relatively young democracy. Can the majority heterosexuals be fair enough to accept that a considerable percentage of our population has opted for a different sexual expression?

The second test is that of tolerance. The quest for equality before the law as outlined in Article 27 raises the question whether we are willing to afford equal rights to those we dislike or fear, or whose lifestyles we feel are repugnant.

The third test is on religion and religious tenets we hold dear. Are our devout believers willing to co-exist with those who do not subscribe to their faith or teachings of their faiths?

LGBTI persons have already done their part by having no problem with those who wish to practice heterosexuality. Can devout Christians and Muslims reciprocate this tolerance that gays and lesbians are willing to extend to them? Can they observe their religion and exercise tolerance at the same time?

People who believe homosexuality is wrong have a right to hold their opinion but they do not have the right to insist the Government and the law must endorse their beliefs and force them on society at large.

{Edward Kahuthia, Nairobi} Courtesy the Standard Newspaper.