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.
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).
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”.
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”.
The loud demands for the reversal of the Supreme Court judgement also ignore its role as the ultimate arbiter over what the constitution says. In fact, many of the same voices have been calling on the opposition to accept another declaration by the Supreme Court: that the president was validly elected in 2022.
In that instance, they are happy to insist that the decision of the court, and its interpretation of what the constitution requires, is final. However, when it comes to addressing the threat posed by “gayism” to the “African values” taught to us by Victorian colonialists, both sides of the political divide are united in rejecting the Supreme Court’s prerogatives.
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.”
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.