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Munyonyo Martyrs Shrine (Kampala). King Mwanga sentencing future Uganda Martyrs to death for
refusing to be sexually abused, 1886.
Wikimedia

A three-judge bench at the Kenyan High Court in Nairobi recently upheld sections of the country’s penal code that criminalise homosexual intercourse. A suit to repeal these parts had been brought to the court by a coalition of LGBT advocacy groups, which claimed that they contravened the Constitution’s provisions on privacy and freedom from discrimination.

The lawsuit was clearly inspired and emboldened by the repeal of a similar law by the Indian Supreme Court last year. The Indian law, like the Kenyan one, was instituted by the British colonial administration, the product, the story goes, of minds keen on maintaining Victorian prudery on the furthest fringes of the Empire.

In the run-up to the ruling, the case had been seen as a major step in the liberalisation of Kenyan, and by extension, African morality around homosexuality. It was to be the signal of a growing acceptance of gay activity, in the country. This is the story that was told to the world. No one bothered to question the merits of the lawsuit.

Reading the unanimous judgement, Justice Roselyn Aburili said:

“We are unable to agree with the petitioners that the views of Kenyans [expressed in the Constitution] should be ignored…  the petitioners have not shown the basis upon which they were discriminated. Cases are determined by discharging the burden of proof and the person complaining must satisfy the burden by tabling clear violations.”

The “view of Kenyans” in question is the fact that the Constitution of Kenya only provides for marriage between men and women. Legalising homosexual intercourse, the Judges felt, would open the way to undermining this value. And the inability to identify “clear violations” was evidently a reference to the fact that no one has ever been convicted of engaging in homosexual intercourse in Kenyaunder the contested provisions of the penal code. 

Predictably, like football defenders lining up before a free kick, Western media focused almost exclusively on the reactions of the LGBT activists who had flocked to the courtroom, hopeful for a favourable ruling. Understandably, they were disappointed and they made that very public. However, the focus on this side of the story had the effect of masking the fact that the vast majority of Kenyans who had followed the case were joyfully relieved.

Framing of the issue: the 'colonial relic' argument

A lot can be said about the case, but there is no doubt that it was just a gust announcing a much bigger storm. The push for so-called LGBT rights in Africa is the stated mission of governments and lobbies that are much bigger, and much better-funded, than many African countries. Its motives notwithstanding, there is something nefarious in the movement’s single-minded all-out effort to undermine the traditional values of an entire society.

Of course, the story has been told in much more benign terms. The populist pitch is that anti-sodomy laws are colonial-era relics. However, this frame, while factually correct, holds no normative weight. As I said in an earlier article on this topic, the Kenyan law would have been repealed by now if nobody wanted it, since we have struck off so many other laws that we inherited from Britain, including the original constitution it gave us.

Conversely, we have kept a lot of things from our colonial past that we have found to be genuinely useful. For instance, you are reading this article in English because it is the language of instruction in Kenyan schools. If having colonial origins made something wrong, we would be compelled to discard a lot of what we hold dear and revert to a hermit-like existence on the fringes of modern society.

No, the law against homosexual acts has stayed because our collective consciousness rebels at homosexuality. For most Kenyans, and Africans by extension, homosexuality remains a morally repugnant aberration. The very thought of it evokes a visceral reaction of disgust. The law just puts this down on paper, its origin notwithstanding.

Tradition and tolerance

Another frame that has been used to tell this story is that African societies have not traditionally proscribed homosexual behaviour. This narrative leans on over-romanticised representations of certain rituals and practices from historical Africa that seem to point to tolerance and, in some cases, outright approval of homosexual activity.

Into this basket are thrown traditions like “nyumba mboke,” a practise among some ethnic communities where a childless widow can get a younger woman to stay with her and bear children on her behalf. Mwanga II, king of the Buganda Kingdom in the late 19th century, is sometimes brought up as an example of an openly gay African public figure from the past.

The problem is that these narratives are quoted grossly out of context. Mwanga, for instance, not only picked up homosexuality from Arab traders but, often high on bhang (cannabis), would sexually abuse his own pages. When some of these dared to refuse his wiles, he burned them alive. I do not see how such stories can advance the LGBT cause in Africa.

Just having a law is 'harmful'

A third frame for legalisation, and the one that would hold most weight, has been that of painting the law as harmful to LGBT individuals. Unfortunately, this frame does not add up either. Nobody has been convicted of breaking this law because it is practically impossible to enforce without violating the privacy of the accused.

In effect, the law acts as a deterrent against public indecency, rather than as a sanction against private intimacy. As a law, it is more a statement of the common position than an actually punitive measure. The lawsuit’s claim that it is discriminatory was speculative, and therefore untenable before the court.

This is not to say that the law has not been used by unscrupulous police officers as an excuse to harass certain individuals. The problem is that, in a flawed country like ours, any law can be used to harass anyone. In fact, countless laws, like traffic laws, are routinely used as an excuse to harass Kenyans. Yet nobody agitates for such laws to be changed. Where a law is abused to harass people, the solution is not exclusively to change the law (although changing it can be reasonable if the law is fundamentally unjust), but rather to entrust the enforcement of such laws to more honest agents.

Ultimately, even if it had won this court case, the LGBT lobby cannot win the respect of Kenyans for LGBT people through this kind of agitation. That respect can only be earned by LGBT individuals through the depths of their friendships with their fellows in society. For this reason, this lobby would gain much more currency in African society if it just kept quiet. By and large, African societies are welcoming places.

Of course, as a people, we could use a bit more open-mindedness in our approach to the idea of homosexuality. While my own sympathies tend towards the fundamentalist position, I think we need to be a bit more discerning in how we think about this subject. It is particularly important to distinguish between the offence and the offender. Homosexuals are people, however depraved we may think their behaviour to be. That should assure them of our friendship and love, if nothing else does.

The LGBT advocacy coalition that brought the recent suit has vowed to appeal the ruling. If the appeal is unsuccessful, it is likely that it will come before the Supreme Court. That could be a few years away but, at the risk of sounding alarmist, we need to buckle up for a very rough ride.

Mathew Otieno writes from Nairobi, Kenya.

Carolyn Moynihan

Carolyn Moynihan is a New Zealand journalist with a special interest in family issues. She began her working life as a secondary school teacher but always fancied the life of the scribe. Too late, she realised that the latter is even more work than teaching Shakespeare to 15-year-olds and the pay is generally less. Being a reluctant geek, she has never quite got over the surprise of finding herself the deputy editor of an online magazine -- a pleasant sensation for the most part. She once wrote a book -- the history of New Zealand’s own anti-porn movement in its heyday -- for which she got mixed reviews and no awards. She lives in the country’s largest city, Auckland, which is three hours by plane from Sydney -- the hub of MercatorNet -- and too far for comfort from anywhere else of importance. Still, it is a very nice vantage point from which to meddle in the affairs of the world.