Last edited: February 05, 2005

What the Law Says

Society, February 5, 2005
The Standard Group
I & M Building, Kenyatta Avenue,
P.O Box 30080, 00100 GPO, Nairobi-Kenya.
Tel: +254 20 3222111, Fax: +254 20 214467.

By Tony Mochama

Homosexuality in Kenya ranks with bestiality and is punishable by law. During the constitution review debate, some gay lobbyists attempted to publicise their legal plight but were advised against it as it was believed likely to cause undue public panic.

They did, however, present their views on the new Constitution, and although gay rights are not explicitly provided for in the draft Constitution, there are several implicit references that gay people could hide under, with only future litigation providing interpretation from the courts. Some of these are:

Section 34 – Freedom from discrimination—specifically on conscience, belief, culture or birth. If one, in good conscience, is gay, or believes in it wholly, or can define one’s lifestyle as their culture, or can prove they were born gay, then it can be argued that they cannot be discriminated against on grounds of their sexuality.

Section 40 – Human dignity—everyone has the inherent dignity and right to have that dignity respected.

Section 43 (d) – Every person has the right to privacy, so that one’s private affairs cannot be unnecessarily required or revealed.

Section 44 – Freedom of belief and opinion.

Section 38 would seem to provide for gay marriages in the future by stating in sub-section three that “every person who is at least 18 years of age has the right to marry, based upon the free consent of the parties.” The parties are not pigeon-holed as “man and woman”, which leaves a window for future gay unions.

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