Kenya is a secular state, a country that can be described as a state with many nation; a diverse country with many strengths and varieties, different ethnic groups, races, cultural expressions, literature and art, traditional celebrations, social and moral values all of which demand and are entitled to recognition, respect, safeguards, promotion and are reconciled with the need to develop a sense of national unity or ‘Kenyanness’.

As a country, Kenya does not have what we can call collective belief, art and cultural expression, social and moral or ethical judgement. It is not a society where citizens are united in belief and moral standard, where law can enforce particular systems of morality. Kenya is a pluralistic society where its people practice different rites of passage, have different menus, diets and cuisines, different days of worship, different vocations, and so on.

Recognising, celebrating, embracing and reconciling this diversity is the common bond and identity that is called Kenya, so long as it does not result in physical or psychological harm to others. In such a scenario, a state cannot legislate and impose the beliefs, ethics, practice and moral values of one section of the society on the rest. National unity is likely to get lost in the process.

‘Kenyanness cannot be developed when one of its marks of diversity is suppressed through the legal system and prevailing public opinion. The Kenya national anthem proclaims very clearly that ‘...justice be our shield and defender/ May we dwell in unity peace and liberty/ Plenty be found within our borders/ Let one and all arise with hearts both strong and true.....’. Therefore every Kenyan citizen should feel part of the Kenyan society and their full membership of the Kenyan nation should not be violated.

The preamble of the Constitution of Kenya explains that Kenyan citizens should be determined to live in peace and unity as one indivisible sovereign nation. The constitution makes it clear that those behaviours that try to divide people and induce hatred on the basis of difference are unacceptable.

Though there is generally freedom of speech, there is no constitutional protection for incitement to violence or hate speech and any sort of communication that tries to stir up hatred based on sexual orientation or gender identity , among others. The constitution is backed by the National Cohesion and Integration Commission Act that makes hate speech a crime.

Kenyan constitution is not by itself sufficient to elevate relationships of society to an order that is genuinely human; that is, to an order whose foundation is truth, whose measure and objectives are justice, whose driving force is love, and whose method of attainment is freedom. It should be borne in mind that relationships between human persons are based on freedom; that is to say no persons may unjustly oppress others, or unduly meddle in their affairs. All human beings are joined together by reasons of their common good.

The question of one of the Kenya’s diversities, that is Kenya’s sexual minorities, lesbians, gay, bisexuals, transgender and intersex persons collectively referred to as LGBTI, encompassing differing sexual orientation and gender(SOGI), those who psychologically, physically, emotionally, sexually or spiritually either feel they are of different gender than the one they were assigned at birth, or cannot reconcile their own identity to either gender category, whose sexual orientation is different from what is considered the norm, has remained an extremely sensitive subject in Kenya, with speeches and writings that strongly condemn these variations.

Some argue very strongly for the recognition, respect, safeguard and promotion of the LGBTI community while homophobes who, with the support of Kenya’s penal code and prevailing public opinion on the unlawfulness of homosexuality, strongly dislike and fear LGBTIs in their speeches and wrings, a clear indicator of Kenya’s dilemma on the rights of LGBTIs.

Certainly, the subject of LGBTIs poses several tests to Kenya as a nation and its citizens. First, is the test of LGBTI rights within the context of Kenyan constitution. Was the Kenyan constitution created to satisfy one sided interest of heterosexuals, where acts of women romantically and sexually attracted to women referred to as lesbianism, and men who are romantically and sexually attracted to men referred to as gays, equals treason? Wasn’t the constitution created for the common good of both heterosexuals and homosexuals?

The second test is that of tolerance. Are Kenyans ready or willing to co-exist with those whose sexual orientation is different? Are they ready to live with those they dislike or fear? Or whose lifestyle they feel is repugnant?

The third test is: Are Kenyans ready to respect other people’s privacy, consenting adults in private who do not cause physical or psychological harm to each other and the community as a whole?

The Kenyan constitution was made for the common welfare of all and not to enhance the privileges of a particular class or section of the community. It is presumed that heterosexuals are majority in Kenya, therefore heterosexuals should not live in denial and be fair enough to accept that there is a considerable percentage of queer people in their midst.

Most homosexuals, due to societal and family pressure, marry and start a family like the majority members of the society. This has hoever resulted in them being bi-sexual since they marry to please family members and to be accepted by the society, and yet continue to keep same-sex partners and engage in both heterosexual and homosexual relationships.

LGBTIs are human beings, sharing equal rights and personal dignity. We should respect their moral values and characteristics peculiar to them; let them carry their normal activities as they obey the law of nature.

Liberty as proclaimed in Kenya’s National Anthem has often been defined as the rights or the privileges of not being under restraint or obligation. The constitution or the law of the state should not impose heterosexual morality on the whole society.

Queer people are at liberty to make moral choices, and no one has moral authority to infringe upon the rights of two adults romantically and sexually attracted to each other, whether heterosexuals or homosexuals, according to their natural desire and by agreement. The mutual attraction of sexes involves the encounter, dialogue, involvement and commitments.

Often LGBTI human rights in Kenya are not considered valid and relevant, because of their present situation, which they are forced to endure or because of past experiences. Sexual minorities face numerous violations on the basis of their sexual orientation or behaviour. These stem largely from laws that criminalize them; societal definitions of what is morality acceptable and that which is not, and mostly the denial of their existence by the society.

They suffer arbitrary arrest, harassment, defamation, sexual abuse, religious homophobic attacks and difficulty in accessing health care services, gross discrimination and stigma owing to their sexual orientation, identity or behaviour.

It must be made clear that justice is seriously violated by limiting LGBTI’s attempts to enjoy advantages of their natural gifts that was internally designed and accrued to them to form their peculiar circumstances. The injustices are more serious by vicious attempts to make laws aimed at the very extinction of queer persons.

Queer persons have a right of fulfilment, of mutual love and the desire of companionship. They should not be discriminated against. Discrimination on the ground of sexual orientation is a practical denial of the essential unity of the human race.

The reason which leads to discrimination of LGBTI’s in Kenya is fear of what is different. This fear may not be consciously realized. When a Kenyan meets a queer person the first reaction is very likely to be a defensive one, underneath which lies fear. Most of Kenya’s LGBTI’s have realized that they are living in a rigid society and they have tried in many ways to cooperate and embrace heterosexuals, but so far the Kenyan state has kept an iron grip on its stand through laws and very powerful public opinion to enforce them. Behind this iron grip is a great fear.

For justice to prevail in Kenya, laws and attitudes towards queer persons must change. Adult human beings have a right to choose freely the state of life they prefer; the right to set up a family or to be celibate; the diet they prefer to consume or even worship according to their conscience.

No human beings can by nature be superior to the other, since all enjoy natural dignity. From this, it follows that heterosexuals and homosexuals do not differ at all from one another in the dignity which they derive from nature. Anti-LGBTI sentiments are a poison which can easily destroy Kenya’s national unity and members of human race as a whole.

Queer persons have a right to exist, to develop themselves, to acquire resources necessary for their development and to defend their good name and honour due to them. It follows that they are likewise bound by the obligation of effectively guarding each of these rights and avoiding actions by which jeopardize those rights . As people in their own private enterprise cannot pursue their own interest to the detriment of others, so the LGBTI community should not also seek their development which is likely to bring harm to heterosexuals and unjustly oppress them.

The LGBTI rights campaign and advocacy should not be an exclusive club of academicians and elite activists who are fond of using tailor-made tactics expecting different results. Campaigning by LGBTI activists who put their individual survival ahead of the wider struggle brings pain and degradation to queer persons. Activism in isolation, in exclusive clubs, poses a difficult task in an environment often and generally hostile to LGBTIs. Their very exclusiveness determines their discrimination and vulnerabilities. Sexual minority rights cannot be accomplished in isolation but within a network of support and solidarity from allies in ordinary social justice activism; those who believe in advancing the notion of the universality of human rights, those who have transgressed allegedly common rules by speaking out on rights and entitlement of LGBTIs; those who share sympathies of queer persons’ human rights violations. Involving ordinary social justice activists in the campaign will help LGBTIs to converse with the society on their existence and raise awareness on their rights, and most importantly to stop queer human rights violations.

Getting into partnerships with social justice activists will not only lend further credibility to the LGBTIs but will also help to spread the message to a wider range of people and strengthen the effectiveness of campaigns against violation of LGBTI rights. The broader the campaign the better. The violators of LGBTI rights may care less if it is an exclusive club of activists ‘making noise’ in their cocoon; but it will be a different story if ordinary social justice activists are included.

Kenya’s social justice activists should advance argument of LGBTI rights from a human rights approach which underlines the basic values of equality and non-discrimination; that LGBTIs are humans too; not dwelling on the argument of whether homosexuality is alien or moral.

* Julius Okoth is a social justice activist and a member of the grassroots movement, Bunge la Mwananchi (The people’s parliament), in Kenya.

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