Freedom in Speech

Written by courtesy of the Sunday Nation Sunday, 24 June 2012 12:05

Harrison Kinyanjui’s diatribe on homosexuality, “Under the law, homosexuality remains a disgusting crime, not a human right” (DN, May 17, 2012) cannot be allowed to stand.

It’s a homophobic screed written with a bucketful of emotion, but with virtually no reason, or respectable argument.

For an Advocate of the High Court of Kenya, he exposes a very soft underbelly. Let me be clear. I don’t disagree that the matter of same-sex relationships is highly charged.

But opponents must do better than reach for un-interrogated cultural or religious epithets. I expect lawyers, like Mr Kinyanjui, to at least understand the law, even if they disagree with its interpretation. Unfortunately, he set a low bar, so to speak.

I knew Mr Kinyanjui was in trouble when he opened his “argument” by dismissing “democracy,” “human rights,” “tolerance,” and “openness” as “Western aphorisms”.

First of all, none of these seminal tenets, ideas, or systems can be described as “aphorisms” unless my learned friend doesn’t know what he’s talking about.

Second, it boggles the mind why Mr Kinyanjui would want to denigrate superior norms like human rights, democracy, openness, and tolerance.

Would he rather, god forbid, that we lived in a “closed tyranny” like North Korea where human rights are unknown and the term “democracy” is used as a farce?

Does Mr Kinyanjui, as a lawyer, understand that the philosophy Kenya’s new Constitution is based on human rights and democratic norms?

Let me get to the heart of the matter. Mr Kinyanjui would have perjured himself if he was testifying in court. He writes, incredibly, that African cultures rejected homosexuality in toto.

He trots out the Kikuyu to “make his case”. But get this – he admits that in “extremely rare cases” the Kikuyu embraced homosexuality. Which is which, counsellor?

Did, or didn’t, the Kikuyu accept homosexuality? If, as Mr Kinyanjui admits, the Kikuyu accepted homosexuality in some cases before colonial rule, how then is it a Western imposition on Africans in general, and the Kikuyu in particular?

Mr Kinyanjui’s assertions are just that – emotional statements offered without empirical research, or evidence.

Studies of African cultures – including the Kikuyu – amply show that homosexuality or same-sex relationships pre-existed colonialism.

The same studies also show that homophobia is largely either a Western hatred taught through the imposition of Christianity on Africans, or the forcible conversion of Africans into Islam.

That’s why African homophobes hide behind Christianity and Islam. What they don’t know is that the “African culture” they speak of is actually corrupted by Christian and Islamic homophobia.

Serious research hasn’t recorded cases of acute homophobia in pre-colonial African societies.

I know from my childhood among the Kamba in Kitui that homosexuality was neither condoned, nor condemned. Sexuality of any sort – straight or gay – was simply not a matter of public conversation.

There’s simply no scientific basis to conclude that Africans are the inherent homophobes that Mr Kinyanjui claims them to be, or that homosexuality is a Western evil designed to wreck “pristine” Africa.

African homophobes seem to be more scared of their own sexuality. The virulent attacks that Mr Kinyanjui levels against gays and lesbians are so emotive that they evoke images of white racists against blacks.

The racist, like the homophobe, is so certain of his own “superiority” that logic is irrelevant. In fact, most racists are simply insecure and deeply troubled human beings. So are misogynists and women-haters.

Methinks homophobes are afraid that they are closet homosexuals. Fear of “the other” is often fear of “self”. I would like to take Mr Kinyanjui back to law school. I will freely enrol him in a class on constitutional law.

First lesson – the Constitution trumps all other laws. No law is above the Constitution. Mr Kinyanjui should know this includes Sections 162-165 of the Penal Code which criminalise homosexuality as “carnal knowledge against the order of nature”.

Article 27, the Equal Protection clause of the Constitution, forbids discrimination on the grounds of sex, which includes “sexual orientation”.

Article 45, which addresses the family, doesn’t prohibit same-sex marriages. Article 45 (2) provides only that “every adult has the right to marry a person of the opposite sex”. Nowhere does it say that same-sex marriages are proscribed.

Lesson two – Mr Kinyanjui should know that the Bill of Rights in the Constitution is superior law. The Bill of Rights trumps other articles in the Constitution.

It’s the pivot of the entire document. If the Constitution – and the Bill of Rights – doesn’t criminalise same-sex relationships, how can Mr Kinyanjui’s argument stand?

It doesn’t – that’s because Sections 162-165 are unconstitutional. The same would be true of any law passed by Parliament to prohibit, or punish, same-sex relationships.

The only way out is to pass a constitutional amendment explicitly outlawing homosexuality. I predict that such an amendment would never see the light of day.

The bar for a constitutional amendment is so high that it’s virtually impossible to reach.

Mr Kinyanjui should know that under the new Constitution, Kenya has entered a new era of emancipation from the tyranny of the state, the bigotry of culture, the despotism of the market, and rule by myopic elites.

We should be more concerned about how to create a freer society. That’s why the “culture war” that Mr Kinyanjui is waging against homosexuals must be rejected.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.