INTRODUCTION

On the issue of homosexuality, issues concerning morality, human rights and public health are often presented as though they are mutually exclusive. If one takes a position in favour of the public health and human rights interest of homosexual persons, such a person is taken to be against the Kenyan religious moral sensibilities and vice versa. This article explores whether it is possible for one to hold together, at least in the public space, the religious ideals that are dear to many Kenyans, while providing for the human rights and health aspirations of the homosexual persons.

CRIMINALIZATION, PUBLIC HEALTH, MORALITY AND HUMAN RIGHTS

The issue of homosexuality arouses different but deeply felt emotions in many parts of the world. In Africa, 38 countries criminalize homosexuality with sentences ranging from a small fine to life imprisonment. Yet criminalization goes well beyond the human rights discourse; it is also a public health issue. There are many well researched papers to date that provide evidence, on the public health impact of criminalization, not just on the homosexual persons, but also on the entire public health system of a country (Gable, 2009; Beyrer, 2010).

For this reason, global health organizations such as World Health Organization – WHO (WHO, 2009; WHO, 2011) - and UNAIDS (UNAIDS, 2008) issued guidelines that specifically speak to the issue of criminalization. Locally the Kenya National AIDS Control Council, NACC, recognized in 2009 that criminalization challenges HIV/AIDS work among key populations. In the strategic planning document, NACC noted that;

‘Sex work, homosexuality and drug use are illegal in Kenya, and attempts to de-criminalise them have faced significant religious and cultural resistance among the population. However, based on new evidence, KNASP III will work with all most at risk groups and seek innovative ways to reduce HIV transmission. Programmes have been working with all these groups for many years, but under constraints, which KNASP III aims to alleviate systematically’. (NACC, 2009).

Yet even after the Kenya Aids Strategic Plan 2009 – 2013 (NACC, 2009) had run its term, NACC conducted an end-term review to evaluate the implementation of that plan. The draft report still found out that criminalization continued to pose a great challenge in programming and outreach, interfering with health seeking behaviour and access to HIV/AIDS services for homosexuals (NACC, 2014). Thus while the policy environment required to improve the health and wellbeing of homosexual persons and by extension the epidemiological interconnection they share with the general population, is known, nothing was happening. It becomes necessary then to ask why this continues to be the case.

Because homosexuality is also a moral issue, religious positions on this topic then become important in determining policy directions Kenya takes. While most Kenyan religious leadership would have particular doctrinal positions on this issue, the Anglican Church stands out for having engaged the most at a theological and pastoral level. For purposes of illustration, we shall quote some of their work, if only to illustrate how a compromise between public health needs and morality can be brokered.

The Anglican Church in Africa and Asia has been at loggerheads with their counterparts in Europe and America over the issue of homosexuality. In order to address this challenge, the African Anglicans formed their own group which they called Global Fellowship of Confessing Anglicans – GAFCA which has to date held two conferences in Jerusalem in 2008 and in Nairobi in 2013. These conferences bring together primates, archbishops, bishops, clergy and lay leaders to chart out the future of GAFCA – hence the name, Global Anglican Future Conference (GAFCON). Details on GAFCON can be found on their website www.gafcon.org

The Anglican Church in Kenya and in African in general has had opportunity to interrogate this topic more than other churches. This position is succinctly captured in their understanding of the creative purpose for human sexuality which can only be expressed in the context of heterosexual marriage.

‘….[they"> acknowledge God’s creation of humankind as male and female and the unchangeable standard of Christian marriage between one man and one woman as the proper place for sexual intimacy and the basis of the family (GAFCON, 2014).’

This understanding defines the purpose of sexuality, as being primarily heterosexual and only in a marital relationship. It is from this perspective that the religious leaders engage with policy issues including criminalization in Kenya. It then becomes clear why churches condemned the Kenyan National Commission on Human Rights (KNCHR) report entitled ‘Realising Sexual and Reproductive Health Rights in Kenya: A myth or reality?’ This report called for the decriminalization of homosexuality and sex work.

This report was based on a series of public inquiries into violations of sexual and reproductive health rights in Kenya (KNCHR, 2012). Like the National AIDS Control Council, KNCHR had established that it is,

‘….difficult to safeguard the sexual and reproductive rights of sexual minority groups owing to their criminalisation. The Kenyan Penal Code for instance criminalises homosexuality and living off the proceeds of prostitution (sex work). Although some see the Kenyan Constitution 2010 as presenting an opportunity to safeguard the rights of sexual minorities, the hostile societal attitude towards these groups will have to be dealt with if meaningful gains with respect to their SRHR are to be realised’ (KNCHR, 2012, p. xxixxii).

And on the basis of these findings KNCHR recommended that,

‘The government should decriminalise same sex relationships and sex work with a view to ensure that they enjoy the human rights enshrined in the Constitution 2010 under the Bill of Rights’ (KNCHR, 2012, p. xxixxii)

NEGATIVE EXTERNALITIES OF THE SOCIAL DETERMINANTS OF HEALTH

The findings from NACC and KNCHR are not the only compelling reasons for policy and legal review. Health economists have long known that certain determinants of health (WHO, 2008) can have negative outcomes not just for the community at risk but also the general population. This is well captured in the causality relationship of externalities. That is, certain actions done by an individual or organization can have impact well beyond that individual or the organization – and these impacts could be positive or negative (Biglan, 2009 ).

When a neighbour plants a tree, the beneficial impact on the environment extends well beyond the fence of that person. Similarly when a person takes a vaccination against an infectious disease, she or he reduces the chances of increasing the number of persons who could potentially spread that disease to others – thereby improving not just personal health but also the health of the entire community. These are called positive externalities.

But there are also situations where a private individual’s action undermines the welfare of the entire society. For example, criminalization of homosexual people reduces their ability and efficacy in seeking health care. The impact on this is characterised by delays in seeking health services, self-medication and only going to seek services when it’s too late or the pain unbearable. This health seeking behaviour has costly impact on the entire public health system – it is a negative externality.

Research in Kenya indicates that homosexual people face extreme stigma and discrimination while accessing health services, hence many delay or avoid seeking the services all together (NACC, 2014). So excluding the homosexuals from the health systems has overall negative impact on the general public health outcomes for everybody in the society in Kenya.

BROKERING A COMPROMISE

The question then is whether the society can arrive at a compromise between moral positions as advanced by the religious institutions and public health needs. Does creating conditions for all members of the society to access health, including homosexual people, of necessity undermine religious and moral aspirations of the Kenyan society? Is criminalization of homosexuality a theological necessity?

The Anglican Archbishop of Kenya Eliud Wabukala seems to think that anything that is not a clear and unequivocal condemnation of homosexuals may be interpreted as attempts to ‘normalize homosexual lifestyles in Africa’ (Wabukala, 2014). Yet could it be that religious leaders fail to fully appreciate negative impact criminalization has on the broader public health interest?

There does seem to be a fundamental misunderstanding and miscommunication between the religious leaders and the homosexual persons. While the impression created by the religious leaders seems to be that homosexuals can be changed into heterosexuality, the latter agree with The American Psychiatric Association, in 1973, and the World Health Organisation, in 1992, who officially accepted it as a normal but variant form of sexual expression for a minority in any population (Rao, 2012).

But because religious leaders still contextualize homosexuality as a condition that can be changed, criminalization then provides at best an incentive and motivation for homosexuals to change into heterosexuality; or at worst criminalization is assumed to play a vanguard role to protect against the advancement of other human rights claim such as full equality by homosexuals.

The situation has not been helped by the Kenyan scientific community including the Kenyan Psychiatric Association’s failure to issue guideline on whether homosexuality is a treatable – hence changeable condition, or an innate and immutable characteristic. Under the circumstances then, homosexual persons, their families and the general public listen to conflicting often confrontational voices and are left on their own to determine which voice makes the most sense.

SUGGESTED COMPROMISES

Given the demonstrable negative impact on public health and human rights, one questions whether the Kenyan society can broker a middle ground between morality aspirations on the one hand, and public health & human rights on the other. Below are some options for consideration:

1. Reaffirm doctrinal protection for the religious community. The preamble of the Kenyan constitution begins by acknowledging the supremacy of the Almighty God. The Bill of Rights also reaffirms the freedom of conscience, religion, thought, belief and opinion, including the right to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship (GOK, 2010).

As a result then religions in Kenya must be provided the space within which to define and preach their doctrine on homosexuality without any hindrance. The government must therefore create conditions that are conducive for the protection and promotion of religious liberty. Being a secular state however, the government cannot use its coercive tools including threat to imprisonment for the advancement of one particular religious doctrine.

2. Align the Penal Code with Constitutional Right to Health. Notwithstanding the above, Article 43 of the constitution says that every person in Kenya has a right to ‘the highest attainable standard of health, which includes the right to health care services, including reproductive health care (GOK, 2010).’ There is a wealth of evidence from studies in Kenya and other parts of the world, that confirm that criminalization impacts negatively on homosexual person’s ability to access health services, particularly HIV/AIDS.

Indeed government own bodies including National AIDS Control Council and Kenya National Commission on Human Rights, have both recommended decriminalization in the interest of providing health services. Decriminalizing homosexuality then, is an important outcome of aligning the penal code to this constitutional right to health.

3. Enabling Policy Environment: Article 21 of the Kenya constitution notes that, ‘It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.’ It also notes that “The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43 (GOK, 2010).”
The government then must continue to develop, adopt and implement policies and guidelines that comprehensively mitigate health and human rights vulnerabilities faced by homosexual persons and indeed all other Kenyans.

4. Primacy of the National Values: Kenya is not an Islamic or Christian state – it is a secular state. Data from the National Census carried out in 2009, shows that of the 38, 389,142 Kenyans, 922,138 indicated that they did not belong to any religion, while 557,470 indicated that they followed other religion, besides the main Christian, Moslem and Hindu religions. A further 635,360 indicated that they were followers of the Traditional African religions. This then indicates that over 2, 144, 963 Kenyans did not belong to the predominant Christian and Islamic religions. Thus even the vast majority of Kenyans are Christians and Moslems; and the two religions hold a common position on the issue of homosexuality, there is need to build on a value system that brings all the Kenyans together.

The National values as detailed in the Constitution provide a minimum value system that holds all the people of Kenya together. Thus, the National Values as found in Section 10 of the Constitution, including human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; must be the basis of the National value system and not any one particular religious doctrine. Criminalization denies homosexual people their inherent dignity and subjects them unequal and discriminatory treatment before the law.

Thus while the government must protect and promote religious freedom, the government must also protect those who disagree with a particular religious doctrine from forced observance of that doctrine. Moreover the coercive power of the state, which includes criminalization and threat to imprisonment, cannot be used to advance a partisan religious interest. It is in the best interest of religious organizations to avoid the temptation of advancing their reach through coercive means. After all, is faith not based on the view that Religious message is convincing and efficacious enough on its own? To think otherwise would be to blaspheme.

* David Kuria Mbote worked as the founding General Manager for Gay and Lesbian Coalition of Kenya (GALCK) from 2009 – 2011.

WORKS CITED

Beyrer, C. D. ( 2010). The Expanding Epidemics of HIV Type 1 Among Men Who Have Sex With Men in Low- and Middle-Income Countries: Diversity and Consistency. Epidemiol Rev , 32 (1): 137-151. .
Biglan, A. (2009 ). The Role of Advocacy Organizations in Reducing Negative Externalities. J Organ Behav Manage, 29(3): 215–230.
Gable, L. G. (2009). A global assessment of the role of law in the HIV/AIDS pandemic. Public Health, 123 (3) - 260 (4).
GAFCON. (2014, August 4). The Jerusalem Declaration. Retrieved from www.gafcon.org: http://gafcon.org/the-jerusalem-declaration
GOK. (2010). Constitution of Kenya. Nairobi: Government Press.
KNCHR. (2012). Realising Sexual and Reproductive Health Rights in Kenya:A myth or reality? 2012: KNCHR.
NACC. (2009). KENYA NATIONAL AIDS STRATEGIC PLAN 2009/10 – 2012/13. Nairobi: NACC.
NACC. (2014). Draft Final Report for End Term Review of Kenya National AIDS Strategic Plan III, 2009/10-2012/13. Nairobi: NACC.
Rao, S. K. (2012). Homosexuality and India. Indian Journal of Psychiatry, 54(1) 1 - 3.
UNAIDS. (2008, November 27). Criminalization of sexual behavior and transmission of HIV hampering AIDS responses. Retrieved from www.unaids.org: http://tinyurl.com/ltchhxc
Wabukala, E. (2014, January 29th ). A response to the statement by the Archbishops of Canterbury and York. Retrieved from www.gafcon.org: http://tinyurl.com/qx9aklm
WHO. (2008). Commission on Social Determinants of Health - final report. Retrieved from www.who.it: http://tinyurl.com/czbkhg
WHO. (2009, April 20th). HIV/AIDS . Retrieved from www.how.it: http://tinyurl.com/n65lq5m
WHO. (2011, October 27). Conclusions: WHO and U.S. NIH working group meeting on treatment for HIV prevention among MSM: What additional evidence is required? Retrieved from www.who.it: http://tinyurl.com/lke9of5

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