I have been very burdened by the gay rights debate. Can somebody help? Here are my observations.

Article 45 – The Family

• Kenyans had asked during the constitution-making process that there is a clear prohibition of same sex marriages, as a way to defend our families.

• Both the Bomas and Wako drafts therefore had a clear provision stating, “A PERSON SHALL NOT MARRY ANOTHER PERSON OF THE SAME SEX.” Why was this lost in the Harmonization process?

•  PCK states in Article 45 (2) that; “every person has the right to marry a person of the opposite sex, based on the free consent of the parties.” It just declares a right but does not bar other unions. So it is true that gays as of today cannot marry. But can they have unions awaiting declaration of rights by the court or embracement of the same through treaties and conventions?

• There is also no definition of MARRIAGE.

• Article 19 (3)  states that the rights and fundamental freedoms in the bill of rights  do not exclude other rights and freedoms not in the bill of rights but recognized or conferred by law except to the extent that they are inconsistent with this chapter.  That means we can declare or acknowledge other RIGHTS.

§        Would sexual minorities rights be inconsistent? In my view NO! Article 27 forbids discrimination on ANY GROUND. So is sexual orientation! Sub article 5 states that a person shall not discriminate on the grounds specified or contemplated in clause (4).  The current constitution states all the ground. PCK has included all grounds! This is a very fundamental departure. I agree that nobody should be discriminated on any ground. I question is, do Kenyans understand that this will capture all grounds including sexual orientation? If they did and still voted for it, that is ok.

§        In article 20 the courts have been empowered to develop the law to the extent that it does not give effects to a right or fundamental freedom. Same article states that in interpreting the Bill of Rights, a court or tribunal or other authority shall promote the values that underlie an open and democratic society… Do Kenyans know what is an open society?

• Article 56 mandates the states to put in place affirmative action programs to ensure that minorities and marginalized groups develop their cultural values, language and PRACTICES. Minority groups are not defined. However, marginalized group is defined in article 260 page 171 to mean a group of people who, because of laws and practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27(4) . Article 27 (4) forbids discrimination of a person on Any Ground including those stated and those contemplated.  The ones stated in this article are not all inclusive. Among the relief the court can give in Article 23 is DECLARATION OF RIGHTS.

• The manner, in which Article 45 has been worded, opens a loophole through which the Courts could interpret the constitution in light of international practice, and recognize sexual minority’s rights. Note that article 27 (1) states that EVERY PERSON IS EQUAL BEFORE THE LAW AND HAS THE RIGHT TO EQUAL PROTECTION AND EQUAL BENEFIT BEFORE THE LAW. Exact clause used in South African case of MINISTER OF HOME AFFAIRS VS FOURIE through which the gays right to marry was pronounced.

How about international treaties and conventions. Are there some that as of today recognize the gay rights?  Have you read the Hague Marriage Convention? What treaties will be there after august 2010? How about in 2025? 2040 etc. Would we want all those future ones ratified without representation to become part of the law of Kenya UNDER THIS CONSTITIUTION?

The family clause falls under the protected clauses. If amended is to be done, it must go through a referendum. Note that amendments under article 257 can only be after 2012 when counties are constituted.

Let’s discuss!