https://www.aljazeera.com/opinions/2023/3/15/how-an-lgbtq-court-ruling-sent-kenya-into-a-moral-panic The legal pushback
against Kenya’s anti-LGBTQ colonial-era laws has unleashed vicious homophobia
in the public space.
Kenya is in the throes of a full-blown
existential moral panic. If the country’s politicians, clergy, self-anointed
defenders of “traditional culture” and media are to be believed, the
long-dreaded gay zombie apocalypse is upon us, bringing hordes of insatiable
homosexuals hungry for our children’s impressionable brains.
A February ruling by the Supreme Court that the constitution
barred discrimination on the basis of sexual orientation has sparked weeks of
hysterical breast-beating across the country, with many fearful that it could
open Pandora’s closet and precipitate the end of civilisation as we know it.
A February ruling by the Supreme Court
that the constitution barred discrimination on the basis of sexual orientation
has sparked weeks of hysterical breast-beating across the country, with many
fearful that it could open Pandora’s closet and precipitate the end of
civilisation as we know it.
Egged on by news anchors and editors keen to serve up drama and
gore in an effort to retain audiences, everyone from President William Ruto to
political pundits has been lining up to condemn the court for upholding
verdicts by lower courts that the government could not lawfully refuse to
register an organisation calling itself the National Gay and Lesbian Human Rights
Commission (NGLHRC).
The jeremiads dominating the airwaves and social media proclaim
this as the beginning of the end.
In an interview with one of the
most-watched local TV stations, Citizen TV, Archbishop Jackson Ole Sapit of the
Anglican Church of Kenya speculated – to approving noises from the anchors –
that this was a sinister ploy by environmentalists to depopulate the globe in
an effort to address climate change. The Ministry of Education has also
announced that it is deploying chaplains to schools to prevent
“infiltration” by the nefarious Western-backed LGBTQ brigade.
Meanwhile, during a parliamentary session, MP Joshua
Kimilu condemned the decision of the court as violating Kenyan law
and warned that Kenyan culture can “be ruined by the West”.
At the heart of the national hatefest
is the increasing visibility and assertiveness of the country’s sexual
minorities. Long suppressed by colonial-era edicts that criminalised sex
“against the order of nature” and Western ideas about “African culture” that engendered vicious
homophobia, in recent decades, queer Kenyans have been pushing back, refusing
to be forced back into the national closet.
This has included a push to have the British-imposed local
versions of the 19th-century Indian Penal Code outlawing sexual acts “against
the order of nature” – colonial code for homosexuality – struck out as contrary
to Kenya’s 2010 constitution, the country’s first supreme law to be wholly
drafted, negotiated and adopted by Kenyans.
The registration of the NGLHRC was one
of two cases concerning LGBTQ rights that have been making their way through
the courts. The reaction to the February ruling may actually be an effort to
influence the second case, which more directly challenges the constitutionality
of the sections of the penal code banning sex “against the order of nature”.
It is important to note, as upheld by both the High Court and the
Supreme Court, and contrary to the assertions of some, that the arcane text of
these laws does not actually criminalise homosexuality or homosexual
relationships or even homosexual orientation.
Rather it sanctions
certain undisclosed sexual acts deemed to be “against the order of nature”
regardless of the sexual orientation of the person committing them. Under the
same laws, for example, heterosexual couples could be conceivably prosecuted
for practising oral or anal sex. However, the laws are almost exclusively used
to target gay people.
In May 2019, a high court upheld the laws in
a convoluted judgement in which judges equated sex to marriage. They insisted
that the constitution’s definition of marriage as a union between people of the
opposite sex required the criminalisation of same-sex relationships while
arguing that the laws did not specifically target LGBTQ people but people in
general and therefore are not discriminatory.
The
case is at the Court of Appeal, and all indications are that it will end up at
the Supreme Court. Thus, the reaction to the NGLHRC verdict can be seen as an
attempt to intimidate the judges, to pressure them into maintaining the status
quo.
Interestingly,
the February ruling by the Supreme Court only echoes what the country’s
attorney general argued openly in court in 2017. While defending the
constitutionality of the colonial sex laws, he nonetheless admitted that the
“Constitution protects individuals against all forms of discrimination,
including on the basis of sexual orientation”.
So what comes next? Even prior to the ruling, MP Peter Kaluma had
declared his intention to introduce a law explicitly criminalising
homosexuality with penalties, including life imprisonment. He remains
undeterred by the court’s upholding of the constitution’s prohibition on
discrimination.
Like
the young Roper in Robert Bolt’s two-act play, A Man For All Seasons, it seems
the Kenyan elite are happy to “cut a great road through the law to get after
the [gay] Devil”. Churches are already proposing that Parliament enact
laws further limiting Kenyans’ freedom of association, singling out groups that
promote illegal practices.
Clearly,
the churchmen are happy to drag the country back to the days when Kenya’s
government could criminalise stuff like dissent and then lock up people who
dared to come together to challenge it. They would do well to consider the
question Thomas More asked Roper: “This country’s planted thick with laws from
coast to coast – man’s laws, not God’s! And if you cut them down – and you’re
just the man to do it – do you really think you could stand upright in the
winds that would blow then?”
The irony of using colonial laws to defend “African culture”
against the spectre of corruption by whites is evidently lost on the anti-gay
brigade, who mistakenly insist that LGBTQ rights are a uniquely Western
invention. Yet manufactured panics about European threats to African sexuality
are nothing new – they were invented by the whites themselves.
In
her PhD thesis, gender studies scholar Elizabeth Williams argues that “in
order to maintain their political dominance in the colony, Kenyan settlers
needed to find a way to present white supremacy as a boon to African welfare.
The solution to this problem lay in the production of a vision of African
sexuality that needed to be protected from contamination by more deviant
settler populations.”
That vision of African sexuality was born of Victorian imaginings
of noble savagery. “The average native is simply an unmoral creature, and as a
general rule, he becomes immoral only after contact with certain forms of
civilization, either Eastern or Western,” one settler wrote in 1920.
Today’s
African elites, who inherited the colonial kingdom, are replicating the same
naked assertion of power. They too declare themselves, and their thievery and
brutality, as justified by the need to protect “African” mores from Western decadence.
Still,
while it may be tempting to dismiss these as the rantings of ignorant and
power-hungry bigots, which they are, we must not forget that they have
real-life consequences.
They
provide justification for the oppression of thousands of Kenyans who find
themselves the victims of violence, rape and imprisonment at the hands of the
state and local communities. Between 2013 and 2017, more than 500 people were
prosecuted under colonial laws and artistic works have
been banned for showing homosexual relationships.
We
must also keep in mind that by undermining the protections in the constitution,
the self-appointed defenders of “African culture” are endangering all of us,
regardless of sexual orientation.
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