Anti-gay Law in Kenya paves way for Constitutional Amendments!

When I posted an article on Museveni signing the Anti-gay law on my Facebook TL, I got a number of comments. One comment in particular was from an early-childhood ‘friend’ who wrote: “Thank you Mr President!” I was deeply hurt because many, many moons ago, I bought him the first beer bottle that he ever took in his life; growing up, we were very tight friends – well now he is a catholic priest and PhD – so I guess my feelings do not matter to him. This however, goes to tell how deeply divisive the issue of gays can be in our region.

Yet, it is not for the sake of pleasing Fr. Peter that Hon. Irungu Kang’atia and his friends are pushing for the Anti-homosexuality law in Kenya. Hon Irungu would like to make amendments to the constitution of Kenya. In our meeting with him last Sunday, he did not strike me as someone who is virulently homophobic. In fact I don’t think he cares very much for gays.

But, he would like to abolish the Senate  and cut down on the powers of the governors. But there is little taste for constitutional amendments right now – unless of course we are talking about gay issues. Here is what I think the strategy towards constitutional amendments is in Kenya.

Push for the bill that gives some of the powers of the governors to the Senate. This bill is currently being drafted in parliament. That way, they would have successfully cut the governors to size. But after empowering the senate, push for its abolition. But because Kenyans are unlikely to support such a move, that is why the Anti-homosexuality law comes in handy.

Hence enact an anti-homosexuality law that will be declared unconstitutional by the court. Kenyans naturally be very angry about this – and parliamentarians will call for a constitutional amendment.  Kenyans are likely to support such an amendment to the Bill of Rights.

Once Kenyans support such a constitutional amendment, others in the 2010 “NO” campaign will come out of their closets and demand amendments to address issues of abortion, Kadhi’s court and the like. – Recall we were told, the bad part would be amended after the passing of the constitution? That is why we see Dr. Karanja  – the Chair of the Catholic Doctors Association, taking very keen interest in this process. He is being recruited to marshal support of the anti-abortion group….

Once all this is in place – it will be downhill all the way. Of course Kenyans will be told that this exercise is “the first amendment!” Pretty catchy; and for poor Kenyans, they will have cut off their noses, to spite their faces….

5-Point Program for 3 audiences – The Family, the Public/society and Religious community.

The winds of political focus on gay debate have now shifted to hostile territory –  with the politicians and lobby groups joining the fry. It is important to examine in greater details what this debate means for Kenyans. Every country has its own internal social-economic-and-political dynamics, and attempting to follow the Ugandan or Nigerian examples would be foolish.  We are in the 21^st Century, and the current toxic debate on gays has negative outcomes not just for gays, but also:

1. Their family members
2.  Kenya’s Economy
3. Religious Interests

Let us discuss each separately:

I am writing this hoping family members, policy makers and religious leaders will read. Help me to reach them by forwarding at least the relevant sections.

Families of gay and lesbian members

Families with gay and lesbian members, often experience social stigma, on account of having a member who is gay or lesbian. Since stigmatization is not a good feeling, many families choose to distance themselves from their gay relative, to lessen the pain. Moreover having been brought up in the same social context as everyone else, they are often in a curious situation of having to be in a close family relationship with someone they would ordinarily stigmatize. But the fact is; people who want to stigmatize will do so regardless of the internal distance the family members may create between themselves.

In some cases the gay or lesbian members, anticipating rejection, choose to distance themselves from other members of the family. By doing this they often hope to reduce family friction, and uncomfortable discussions about sexuality. Besides these family dynamics, there are other less obvious effects of social stigma – including negative policies and laws. These include:

1. Negating strong family bonds – Families rely on each other for support particularly during times of adversity. These adversities could be chronic illnesses, mitigating financial and economic challenges and even taking advantage of development opportunities such as educational or economic advancement. This form of CAPITAL within families and communities is called social capital. Studies in Kenya have shown, most businesses start from loans advanced by family members. Distancing any family member; especially one who is likely to have some disposable income, negates the formation of strong family bonds and opportunities for consolidating social capital.
2. Stigma and Blackmail – The situation Criminalization and lack of protective laws is a cash cow for blackmailers.  In some cases some gay and lesbian people dedicate a significant part of their monthly income to paying off blackmailers on routine basis. This diverts resources from the family. So when blackmailers and extortionists rob from the gay and lesbian people, they are in effect robbing the entire family.
3. Health and Well-being: There is quite a huge amount of literature now that demonstrates how this oppressive environment affects gay and lesbian people’s health and well-being. For the family members that should be enough to move into action in support of their gay or lesbian relative. But because, it is the family members who in most occasions HAVE to take care of their ill members – (including the associated financial and human costs), their interest in the policy environment affecting their gay and lesbian members, cannot be passive. It should be proactive and preventative. The whole family should be interested in preventing conditions that will cause ill health and reduced wellbeing.
4. Increasing Family Opportunities: Oppressive laws and policies are a major disincentive for entrepreneurship and wealth creation. In our context where unemployment among skilled and unskilled labour is reduced through absorption into family businesses, this disincentive has far reaching consequences. [Personally I would like to create a business and hire some within my own family, who are unemployed, but I can only withstand the current blackmail and extortion as it is].
5. Social Protection, especially in old age: Family members may not like that their gay or lesbian brothers are not building their own social protection by starting their own families and having children. They know however, that they are unlikely to abandon their gay relatives once they age – such would bring shame to the entire family. That is why it becomes necessary to support their gay and lesbian brothers as they form alternative social capital - that is grounded on protective laws.

What of the broader [Kenyan] Society

People, who do not have gay family members, tend to be ambivalent on this issue, but they should not be. Here is why;

1. International positioning: Kenya is home to many international organizations such as the UN offices of UNHABITAT and UNEP. It is also home to many international non-governmental organizations working in the region.  Kenya’s hosting of the UN offices has numerous tangible (financial) and non-tangible (positional & perceptual) benefits. Yet the presence of these offices in Nairobi is contested. The surest way of losing these offices is going the Uganda & Nigeria way. How can the UN for example guarantee that its internationally sourced staff members will not suffer the effects of criminalization, blackmail and extortion, including possibility of violence?
2. Regional Positioning:  Hosting regional offices of many NGOs supports enables the country to leverage Foreign Exchange rate stabilization – even when actual spending of the dollars happens in the neighbouring countries. Moreover the resident staffs spend and save a considerable amount of their incomes in the country, which transfers wealth to our people. Now the reason Kenya is a destination of choice is largely because of “psychological nearness.” Kenya has been perceived as a cosmopolitan country – at least Nairobi is.  We need to build on this positioning rather than threaten in with village inspired mentality.  
3. Tourism – The Kenya Tourism Board complains of being poorly funded. Now they have will have one additional challenge – of a negative image to deal with. South Africa must be looking with glee as their marketing campaign just got easier….South Africa Marketing slogan. It is not the big 5 & wildlife – Tanzania has better offering, many African countries including South Africa have them.
4. Cost of Health Care: Criminalization and lack of protective laws & policies worsens the health outcomes of the gay and lesbian Kenyans. It also adds to the burden of disease in the country. Moreover, as we have demonstrated in previous postings, there are externalities associated with one individual falling sick, in the society.  This situation is made worse if we are dealing with infectious such as HIV. As a resource-limited/poor country, should the real brainy thing to do, not be reducing the disease burden and factors that escalate the cost of health care?
5. Deepening our democratic gains: Every farmer will tell you that the way to protect one’s land from encroachment is by protecting every marginal inch. The last inch of the land may not be that important, in fact, by itself, it may not add much to the bottom line, but they know if they lose it, they will have started the process of further encroachment. A similar argument holds for human rights. The way to protect and deepen the democratic gains we have made as a country is by jealously protecting the rights of those at the margin of society – those whose rights are most likely to be abused. Building a case for protection of the rights and freedoms to privacy, association, expression etc. for gays, makes it infinitely easier to make a case for mainstream society. In fact, brainy social activists may want to focus on marginal societies because in so doing they mainstream the universality of human rights.

What of the Religious interests?

I have spoken to a number of high-ranking religious leaders, such as the late Arch-bishop David Gitari, Bishop Chai of Mombasa, Sheikh Hussein Ali, and Sheikh Juma Ngao among others. From one-to-one conversations, these leaders sound ardent in their search of a lasting solution on religious aspirations and reality of gay and lesbian members. Unfortunately their public pronouncements are not always so conciliatory.  Their public pronouncements are often perceived as pushing for these oppressive laws and policies. Unfortunately this public positioning of religion, fails in its track in the following ways:

1. Message is perceived to be vengeful & hateful: In private conversations, Sheikh Ngao, Bishop Chai and others may say the prophets and even Jesus did not come for the saints but sinners. And that they would like to attract them to their Mosques & Churches, yet tone and content of their message is anything but inviting. Of course, one understands the fear they have of “normalizing homosexuality” or making it appear as “socially acceptable.” But this is a trade-off they have to deal with – either they take a bitter and hostile positioning – which emphasize the seriousness of the sin of homosexuality and in the process chase away the homosexuals from them, or they take a compassionate and inviting approach – which makes their message less threatening and appealing. Sadly for them, they cannot have it both ways.
2. Crime by Association: Many religious people may not support the endemic violence against gay and lesbian people, yet they do not condemn it as much as they condemn gay people. Moreover, many people who perpetrate violence against gay people use religiously-inspired arguments often the same talking points used by religious leaders. Indeed in many occasions, it can be quite difficult to separate the hostile voices emanating from religious leaders and those advanced by violent homophobes. Over time religion is increasingly becoming a mouth piece for these homophobes and if the trend is not checked, a merger (hostile or friendly) seems to be in the offing.
3. Pain to family and Friends: Religious leaders may be oblivious to this simple fact – many family members actually do love their gay and lesbian relatives. As a result, when they are hurt by religious emanating or inspired hostile voices and actions, the family members hurt just as much as their gay and lesbian relatives. Over time this creates resentment and indifference. Religious leaders may be of the view that theirs is the “straight and narrow” but how they deliver this message has effect on the parents, brothers, sisters and other relatives. Like the drop of rain, it cannot fall on the ground and have no effect; if its clean water, it waters the ground and vegetation grows but if it is acidic, it scotches the earth.
4. Moral Benchmarking: Religious leaders must understand, that when they emphasize on this issue, relative to other social issues, which may be more urgent, and their impact far reaching, they are creating a moral benchmark. They too are human beings, and they have failings, some of which have only been too recent – pastor in a bar and the other dies in a woman’s house.  That the issue of homosexuality is more morally serious is increasingly flying in the face – soon or latter whatever little credibility they have left, will evaporate and dry up, never to be seen again.
5. Signs if the times: Society is changing and the church must learn how to engage with the people in these new times. I guess the best ever lesson to be learnt about this is the document by the Catholic Church in 1965 – Gaudium et Spes. While it’s a document of its own time, and some of the issues discussed are now dated, it was as the document states and attempt for the church to scrutinize “the signs of the times and of interpreting them in the light of the Gospel.”  Taking a fundamentally moralistic and calling on the state to use its coercive power to enforce that moral posturing, is most  unfortunate.

It’s Not your Constitution – gays told

There is this argument, that one hears with increasing regularity: - “That had the constitution expressly recognized homosexuals then it would have overwhelmingly been rejected by the Kenyan Majority” in the 2010 Referendum (This quote is taken from the A.G.s response to the case Eric Gitari has filed to have his organization registered – Since I do not understand what is or is not sub Judice let me leave the contents of the case alone).  Rather let’s re-call what we were told about the draft constitution – which was eventually overwhelmingly supported by Kenyans. 

In the 2010 referendum, the church was opposed to the passing of the New Constitution, with the main churches; the Anglicans  and the Catholics  being bitterly opposed. One of the main arguments by those opposed to the passing of the constitution was that it allowed for gay rights

In response to the Churches opposition, Kenyans were told that “… nothing that is 100 per cent perfect but we are urging the people to vote for the draft because 96 per cent of it is good and only one or two things are causing problems” and that the contentious issues would be amended after the passing of the then draft constitution. So Kenyans knew very well, they were voting for a document that optimized rather than maximized their expectations. It was a consensus document not a shopping list.

A constitution is a set of fundamental principles according to which a state is governed, it cannot possibly expressly recognize all particular sub-population in the country. It is therefore not a surprise that the homosexuals were not specifically mentioned.  One would also argue that they are not expressly rejected either (Recall, if not denied, it’s accepted). Even art., 45, which is where specific mention should have been made, the constitution is silent. 
 
The question we should be asking is whether Kenyans would want to open the new constitution to amendments that specifically exclude gays. For example, would Kenyans want to risk opening the constitution to amendments (which is likely to be a slippery slope of more and more amendments) just to review the following section as follows:- 

Currently: Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. - art.20 (2)

To Read after Amendment: Except for gays in Kenya every other person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.

I highly doubt such a move would be popular at all!

Rasna Warah’s Article betrays “closeted” homophobia.

I think the article by Rasna in today’s Daily Nation (February 10, 2014) should open an important conversation about the place of basic human rights for gay and lesbian Kenyans among the Human rights advocates in Kenya. By basic human rights, I mean such basic rights and freedom such as Right to life, not being subjected to torture or to cruel, inhuman or degrading treatment, arbitrary arrest, detention or exile, and right of equal access to public service among others.

While, by default, I tend to support people closely associated with Human Rights work, I also feel a deep sense of betrayal, when they; speaking from a position of heteronormative privilege extend/expand on the stereotypes against gay and lesbian people. In Rasna, article one seems to get a sense that a lot of money has been poured to spread ‘gayism’ in Africa, when she says “…Western pro-gay lobbies that have pumped money into lesbian, gay, bisexual, trans-gender, and intersex (LGBTI in NGO-speak) communities worldwide.”

This creates the impression that the current gay & lesbian rights advocacy is driven by need to cash in on the funding from Western pro-gay lobbies. Yet a closer look at any little funding gay rights advocacy work is receiving reveals that they are proportionately far less funded than other Human rights organizations. Moreover they are in fact funded by the same organization that fund “mainstream” human rights work. And in any case, is the claim that “funding drives human rights activism” not the same argument used by detractors of the Civil (evil) Society?

What disappointed the most is her contextualizing of the Kenyan homosexual human rights debate vis-à-vis Western gay rights activism, by appealing to Marc Epprecht’s work (A Canadian Scholar, teaching at Queen's University, Canada). Now make no mistake I respect Marc’s scholarly work very much, and although we have not talked for years, I very much believe I am still friends with him.  Yet, I would rather that Rasna, appeals to Denis Nzioka, Eric Gitari, and Pouline Kimani's, world views. I believe Marc would desire nothing less.

As for gay rights activism diverting “attention from pressing issues such as land grabs, corruption, and inequality,” I seriously wonder whether sakina and amina in this  video, http://www.youtube.com/watch?v=A7AD1zLyR5k, would think land grabbing as a priority even as they fight just to survive for a day. Even for the privileged gays like Binyavanga Wainaina, personal security remains a challenge – right to life, a right taken for granted by so many Kenyans, is precarious for gay people. 

About stereotypical portrayal of Africa as being homophobic by the Western media, I wonder whether that is not something most Africans are proud of. I can only think of a recent exchange between the Arch-bishop of Canterbury, Justin Cantuar, and Arch-bishop Eliud Wabukala of Nairobi and the current chair of GAFCON. In his letter to all Primates of the Anglican Communion, Justin Cantuar calls for  “pastoral support and care of every one worldwide, regardless of sexual orientation.”  

But in Response Arch-bishop Wabukala says that this call “has served to encourage those who want to normalize homosexual lifestyles in Africa and has fueled prejudice against African Anglicans.” I really do not think one has to be a ‘Western Journalist’ to assume that being perceived as homophobic is not a tag/stereotype that is celebrated by many Africans. Moreover, for most African, being homophobic is not perceived as being backward, but rather, it’s seen as being ethically and morally superior. 

Lastly, it is helpful to add, that for many gay and lesbian Kenyans, and the issues they would hope the whole of the entire human rights community focused on include; commonality of violence, stigma and discrimination, especially as they seek public services and inability to access justice and redress due to their criminalization.

It is unlikely that any Human Rights Advocate will be judged harshly by God, because they condemned violence against gay and lesbian people, or because they said their criminalization unfairly obstructs their ability to access public services such as health and justice. Perhaps it is time the Kenyan Human Rights ‘community’ discussed the extent to which they can support Universal Human Rights in reference to gay and lesbian Kenyans.