Staircase valuation, cultural protectionism and Religious Dictatorship

My Friend Ali is a Kenyan of Asian descent. He and I like to walk into new houses as they are being constructed. There is a housing development near where I live, so on Christmas day we walked through those houses. 

You see Ali grants me the access card, while I give him protection. As an Indian, he does not need to proof a priori of his ability to buy – it is presumed he has the ability; site managers falls all over themselves showing him the best house. The situation would be even more dramatic, if Ali were White. But me on the other hand, as a Kenyan of African descent, right from the time I step through the gate I have to proof ability to buy before one of the handymen can show me a near-complete house. 

Most Kenyans would know of this experience – anyone who has gone to a hotel frequented by expatriates or tourists in Nairobi or any other major town would have a variant story that essentially details the same experience. What is interesting is that this discriminatory treatment is perpetrated by fellow Kenyans, who also complain of the same mistreatment while trying to access services elsewhere.

It does appear to me, that even after 50 years of independence, we are still captives of staircase valuation, the highest levels still reserved for the racially privileged. Our only novelty is to push and shove among ourselves, arguing often violently, on who has right to occupy the “topmost of the lowest stairs.”  

Yet when we talk of equality and non-discrimination, no one listens. Our message is not just about inclusion of gay and lesbian people, rather it is about a complete paradigm shift in how we see ourselves and others as human beings; If only we could listen – the true impact of our message is that all Kenyans can walk into an upmarket restaurant and be served just like anybody else and the waiter in that upmarket restaurant, can walk into a movie theater and be served with the same courtesy.  That our politicians can walk through duty free shops in international airports (since they can now afford), and not be suspected of shoplifting!

But we first need to believe it, that all of us, without exception have human dignity essentially because we are human and not because we have money, education or connections. The way to mainstream this thinking is by respecting the rights of those at the most extreme of social margin. An instrumentalist approach offers the easiest and fastest way of entrenching this paradigm shift – How I wish 2014 will be the year we understand this simple message!

What about our culture? What about our religion?

Cultural protectionism is no way to go in a globalized world; it is an exercise in futility. It is even more futile, if that protectionism is practiced selectively. Yet if we feel we must, then at least let us spend time and resources to understand all the facets of this exclusionary policy decision. If we must continue to criminalize gay and lesbian people, then let us study the full impacts of such policy decision – including the resultant externalities and spill-overs. That is what we would do for any policy decision; this one should not be any different.

On religion, it is important to provide for and protect religious freedom. But we must also protect against religious overreach. The current Anti-homosexuality Bill in Uganda is an example of such an overreach – even dictatorship. While the Bill asserts that it wants to protect traditional family; it defines this protection in negative terms i.e., by prohibiting same-sex relationships. The real threats to traditional family are maternal deaths, preventable or curable diseases like malaria and ‘negative’ traditional practices! If the Ugandan government (and those others who may be tempted to copy the Ugandan poor example), wants to protect traditional family; then let them provide appropriate social protection schemes for families, particularly against catastrophic health spending.

Lastly, in a conversation with a catholic priest last week, he asked me, “If all people became gay, would humanity not become extinct?” I asked him in return, if all people became catholic priests, would not humanity become extinct? He only smiled slyly – I am still trying to figure out what could have been going through his mind… 

Happy and Prosperous 2014!

Views to Consider on Section 377 India Ruling

Many in Africa have been following the Indian Supreme Court ruling in the case of Suresh Kumar Koushal and another v. Naz Foundation and others. The judgment was delivered at the beginning of this month and it was not good news – it basically re-criminalized consensual same-sex sexuality in India.

The Supreme Court had been asked to examine the constitutionality of Section 377 of the Indian Penal Code, which provides for the punishment of those found guilty of “unnatural offences”. The law, originally introduced by the British colonial administration over 150 years ago in India, has been used to criminalize same-sex sexuality. Of course this narrative is the same for many former British colonies in Africa. In Kenya the same version of the law was introduced in 1930. 

Many had hoped that India would lead the way by deleting that part of colonial legacy. It is highly unlikely now that any African country will lead the way – if anything; many countries such as Uganda, Nigeria, and Liberia among others have shown appetite for adding to the penalties already provided or even enlarge the scope of the law.  Of course we could be pleasantly surprised by an odd country that opted to affirm its own agency and re-affirm fundamental rights of all her citizens as enshrined in most countries constitutions – but highly unlikely.

While it is easy to see why parliamentarians in Africa push for further criminalization of a discriminated minority – (it earns them political mileage plus providing opportunity to distract public attention), it is hard to understand why the religious leadership relish at further criminalization. Surely only the most unwise would think criminalizing gay and lesbian people would turn them heterosexual. Surely everyone knows criminalization, rather than squeeze out the practice of same-sex sexuality, only changes the context under which it’s practiced.

Religion on the other hand, has to stand the test of time. It should be more strategic in its thinking and reasoning about social issues. I think it’s extremely unwise for the religious class to jump into the criminalization bandwagon. Why? Because, by changing the context, important human rights and public health externalities arise. These externalities are unintended negative spill overs that flow directly from criminalization and often tend to affect the most vulnerable in the society irrespective of their sexuality.

These spill overs include:

• Increased violence – both verbal and physical against gay and lesbian people in the society. Why would the religious sector want to be associated with violence? Yet this type of violence hardly affects all people equally. The most vulnerable would be the gay and lesbian people in crowded slum areas, and hardly ever the rich ones living in greener suburbs. Of interest to the religious sector, is that once it becomes allowable to be violent against someone because of sexual practice, it progressively opens floodgates to violence on moral grounds including poorer religious leaders who may not fit the social script. Interestingly this spiraling of violence and expansion of justification for aggressive behaviour will always affect the poor more than the rich – so much so, that the rich gay man or woman will suffer less from it, than a heterosexual poor man or woman in the long run.

• Obstacles in accessing health care. This is yet another case where negative externalities of excluding the gay and lesbian people follow a resource rather than sexuality divide. I would not want to be seen to underestimate the challenges faced by many gay and lesbian people in seeking non-stigmatizing health services. There are many cases where health workers have openly discriminated and mistreated people on account their real or perceived sexuality. But from an economic point of view, negative externalities flowing from this exclusion, will almost always follow a poverty fault line than they would a sexual orientation one.

• Impact on livelihoods. Discrimination, stigmatization and exclusionary laws do contribute to poverty, decreased social capital, lack of education and consequently employ-ability. Criminalization does fuel certain factors that directly affect gay and lesbian people’s ability to earn a living, such as ejection from the job place, but also bullying in school which may increase absenteeism and low self-esteem. Yet in our African family context where “haba na haba hujaza kibaba” dis-empowerment of one person in the family often affects the economic outcomes of the entire family. In terms of economic outcome spill overs, the poor will generally suffer more as a result of these laws than the rich.

• Constriction of the democratic space and participation in civil society. Many African leaders have realized that anti-gay laws present one of the easiest ways to distract public attention from cases of corruption, human rights abuses or reduction of the democratic space through unconstitutional laws. This of course affects everyone in the society but more often than not, the poor bear the brunt of the economic and political outcomes.

The religious sector may not have deeply reflected on their blind support at criminalization. Yet in the long run, as social scientists continue to account for the outcomes criminalization, the legacy of their support will be more about poverty  than sexuality. Two economic concepts for one who may want to explore this inequitable distribution of negative spill overs or externalities are:

Allocative Efficiency – particularly in reference to health. Because of criminalization, gay and lesbian consumers of health fail to have their choices and preferences factored in. Often the questions asked are, how health care workers can work can provide health care to gay and lesbians in the context of criminalization, rather than how to gay and lesbian health preferences can be utilized to package services thereby increasing demand and uptake. Smart health allocation strategies would call for an immediate and judicious review.

Social Efficiency – this refers to how externalities are shared out in the society. Criminalization among other negative social outcomes, creates an unfavorable environment for gays and lesbians to seek health services. For the religious and other leaders the important thing to remember is negative externalities resulting from lack of uptake of health services by gay and lesbian people affect more than just this population. It might even be that, in absolute numbers, more heterosexual people are negatively impacted from this exclusion than the gay and lesbian people.

The politicians do gain short-term political capital from the current situation, but the religious sector must query their prophetic opportunity by supporting an inherently discriminative policy - that in any case entrenches inequality more out of poverty than sexuality.

A Sworn Affidavit - That is what I will present to them

In my posting last week I confessed to having committed a criminal act – and of course the desire is not so that I get arrested and jailed for 14 years, but rather for the government to realize its error and remove the punitive laws. In this post I continue with the same motif only this time, I elaborate on what to do if the government does not prosecute me.

Health economists often talk of three components of efficiency in health. These are technical efficiency, cost efficiency and allocative efficiency. These three build on each other. Technical efficiency is about producing maximum output from minimum quantity of inputs such as labor, finances and technology. In health this would mean reaching the highest number of consumers of health without having to increase the number of clinical staff and facilities.

Cost efficiency on the other hand is about getting the greatest value for money invested. It is about ensuring that the cost of inputs that produce the maximum inputs are kept at the lowest they can be without reducing the quality/value/utility of the outputs.

But it is Allocative efficiency that is of interest in this posting. Allocative efficiency relates to the demand side of health. It is about providing goods and services that are valued by the clients. In the context of Key Populations (people constantly stigmatized and discriminated) it is about appreciating the preferences and choices of health consumers. For Key Populations and the MSM in particular, allocative efficiency is about contextualizing this health service provision within the framework that appreciates the impact of criminalization.

As a tax payer in Kenya, I am also concerned of how efficient the government uses the tax revenue that I contribute. Indeed, the question for me is if the government does not efficiently use the tax revenue efficiently, how I can legally not pay tax. People in jail, do not pay tax, rather they live off the tax contributed by others – and as one who has been criminalized, this is not an entirely unattractive option. Notice the desire is not to go to jail, per se, but rather to refrain from being part of inefficient revenue allocative reprocesses.

Over and above the 30% tax on income charged on personal income, we also pay 16% on all taxable goods and services at the point of purchase. For three months now, I have collected all sales receipts with the intention of tracking V.A.T charges and the amount is mind boggling. It is not entirely incorrect to say that close to 46% of our personal income goes to the government coffers in form of tax.

The question then for me, - and should be the same question for people trivially and unnecessary criminalized like me, is whether we should continue to fund, the government when its valuation of our contribution is in negative terms – negative equity. Recall, by criminalizing the MSM and others, the government values our contribution, is Kshs. 63, 875 that it would have to pay to feed us in jail for one year multiplied over the term of the jail sentence.

Another way of evaluating my tax contribution to the Government of Kenya is to view it through the lenses of one of the vision 2030 flagship projects on social protection. This is the Cash Transfer Program. The government has been giving Kshs. 2000 to certain categories of vulnerable members of the society including the elderly, people living with disabilities and orphans and vulnerable children – OVC. “Supposing” my average monthly tax contribution is Kshs. 134,326, then I have been funding the cash transfer program, to the tune of 67 families each month.

By jailing me, the state will not only lose my tax revenue contribution but also will incur additional costs to feed and clothe me while in jail. My criminalization is un-necessary, and it represents an inefficient use of government health allocations especially those focusing on MSM HIV/AIDS needs. If it takes going to jail to prove this point, (needless though it may be), then that is what am prepared to do.

Since the director of public prosecutions has failed to reach out to me, upon confessing my criminal acts, I will make the work even easier for him. I will present myself with a sworn affidavit confessing this/these criminal act(s). I will require of them to jail me as the law requires (and have me living off other people’s tax revenue for a change) or decriminalize private consensual adult sexuality – which by the way is in public health interest!

Lastly, what is the rationale/philosophy behind jailing someone? Is it retributive – balancing the wrong that has been done through punishment, or rehabilitative? Or is the reason to incapacitate and prevent from further action? Whatever the case, anyone who thinks jailing gays stops them from having gay sex, is living in a fools paradise.

All things are subject to Interpretation - But I here confess committing a criminal act

All things are subject to interpretation. Whichever interpretation prevails at a given time is a function of power not truth. This saying credited to Friedrich Nietzsche, highlights what am about to confess to in this article. 

My friend, Eric Gitari, the Executive director of the National Gay and Lesbian Human Rights Commission, has sued the NGO coordination board and the Attorney General for the latter’s failure to register his organization. Eric feels his freedom of association as guaranteed in the constitution of Kenya has been infringed upon hence the legal redress.

The Replying Affidavit from the Kenyan Attorney General demonstrates the truism of the power holder vis-à-vis the content of interpretation. In a week that saw the election of Prof. Dinesh Bhugra, as the President-Elect of the World Psychiatric Association becoming the first ever “out” gay person to hold such a position. The Attorney General of the Kenyan Republic says that “Gays and Lesbians are persons who have made conscious choices to be Gay or Lesbian and this is informed by the fact that homosexual lifestyle is a learned behaviour that has absolutely nothing to do with our genetic makeup.”

Prof. Bhugra acknowledges that psychiatry is a medical specialty that deals with “the most complex and intellectually demanding patients but has” had a history of abusing lesbian, gay and bisexual patients.  Bhugra leads an association with over 200,000 psychiatrists worldwide, who like him know that being gay or lesbian is not a conscious choice.

Of course the Attorney General would rather pull the Moral card when he says that “homosexuality is largely considered to be a taboo and repugnant to the religious teachings, cultural values and morality of the Kenyan people and the law…”But it is about time someone called their moral and religious bluff. By calling on the AG’s moral bluff, we are in essence turning the tables of power on him. Superior morality calls for consistency and it abhors double standards. 

It is great that he notes homosexuality is criminalized in Kenya, and because of that homosexuals should not be allowed to register an organization that advocates their basic human rights – which by the way he considers to be “special rights.” Since today happens to be the World AIDS Day, the same government that talks of homosexuals making conscious choices, still spends enormous financial and human resources reaching out to them [by euphemically calling them Men who have sex with Men – MSM].

If they believe in the rule of law so much, should they not be arresting them and jailing them for 14 years as the LAW stipulates? Instead of sending out clinicians to reach out to the MSM in discrete locations, should they not be posting police and religious leaders, to arrest and/or preach to them? Why the double standards? More importantly, why the hypocrisy for a country that is so deeply moral and religious (so much so that registration of a gay and lesbian identified organization) would be utterly repugnant? 

Well, I do wish to give the Attorney General and other morally duplicitous Kenyans an easy time. I wish to confess to having had sex with other men severally during my adult life. 

It is very tiresome for me, to work in the area of HIV/AIDS in Kenya, where we know what needs to be done to roll back the epidemic and improve public health outcomes for all Kenyans, have another section of the government; aggressively and without pity do all they can to delete our work! For them to attempt to claim moral superiority, while in fact they are the very edifice of hypocrisy, cannot go unchallenged.

We know the bio-medical interventions, the behavioural and in this case the structural reforms that need to be put in place. We know that this law they so ferociously seek to protect increases vulnerability of certain sections of our society, which in turn creates negative externalities to public health outcomes for the entire Kenyan population. In this day and age, no sane person with a modicum level of understanding of social epidemiology can defend structural barriers that keep one section of the society from accessing health services of a communicable sexually transmitted disease like HIV – in the context of an epidemic. 

At the very least what the Attorney General should do is to undertake a study on the Social Return on Investments in Health on these laws that he so fanatically supports. As an output of the study, he may want to understand the impact and relationship these structural/legal/policy barriers to health for Key Populations on public and private morality. And indeed how such can be mitigated. I think there are people who would be willing to support such a study – if only because it promises better public health outcomes for all Kenyans.

Since I do not want to be on the side of history that speaks from both sides of its mouth [hypocritical], I must admit and publicly confess that on various dates in my adult life, I have had sex with other consenting adult men. I admit that I have broken the Kenyan penal code of 1930 (revised in 2006) section 162. I do not however understand what “against the order of nature” really means because it seemed very natural to both of us. 

I make this confession freely, willingly and with full knowledge of my act. Indeed it is because of having had sex with another consenting adult that I will later today (1^st of December 2013) be heading for a HIV test. It’s over 6 months since my last test yet government sanctioned guidelines for men like me who have sex with other men is a HIV tests every 3 months. 

Having made this confession, I believe, the law should either be enforced and have me and others who likewise willingly confess to this crime get arrested, or, we deem this piece of law to be of no consequence and hence have it deleted from our books. Once deleted, the NGO board would have no reason for denying gay and lesbian Kenyans registration for organizations that they freely wish to form; and name, in ways that creates least confusion to others who are not gay or would not wish to join gay themed organizations.