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:-
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!
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