I have attended many brainstorming sessions
on legal and policy environment for
sexual minorities in Kenya. Many of these arguments revolve around seeking
judicial reviews for the offending sections of the law. There are many people who
are of the view that sections 162, 163 and 165 of the penal code are
unconstitutional. That being the case they opine, by going to court, sexual
minority rights activists would get a favorable judgment from the
constitutional court.
Other activists are very fearful of that approach
because, should the court rule against them, a precedent will have been set
which will be very difficult to change. Such a precedent would provide a prism
through which related cases will be judged. Those from this school urge for caution
saying it’s better to progressively build on positive rulings before launching
on the big one.
But I am proposing another third option. If
you were a keen follower of the “Numbers TV Series,” you will like this option.
It is slightly crazy but perhaps because of it, very do-able!
Let us start from numbers that we already know
of: In 2011, a population size estimate study conducted in Nairobi and Kisumu,
estimated that there are about 11,042 MSM in Nairobi with a plausible range
being between 10,000 and 22,222.
Another number of importance, is derived
from the recently released preliminary KAIS (Kenya AIDS Indicator Survey),
which tells us that about 1% of the men surveyed had had MSM sexual activity.
Since the study is supposed to be population based, hence nationally representative,
we may well conclude that about 1% of adult males in Kenya are MSM or have had
MSM experiences. This may well be the first population based survey that tells
us about male same-sex sexual activity in Kenya, but that is not the point
here.
What we are interested in, is what the 1%
of men 15 years and above is, in absolute values. There are about 12,278,027 men aged 15 and about in Kenya
today. Therefore there are about 122,780 MSM in Kenya (12,278,027 * .01). In
other words, if sections 162, 163 or 165 were to be applied as they should
about 122,780 men should be serving prison sentences in Kenya today – and they
are not.
Financial Advocacy
Why then is the government not zealously enforcing
these sections of the penal code, even though they are aware of these numbers?
Could it be because they are afraid of the financial burden such would
entail? Let us look at the financial
numbers.
It costs Kshs. 175 to feed an individual
prisoner daily or about Kshs. 63,875 per year and about Ksh.894, 250 to feed
one prisoner for the 14-year required jail term. Hence, if the government were
to decide to jail only the MSM in Nairobi, then it would incur Kshs. 1.9 Million
daily, just to feed them, and Kshs. 696 million annually and Kshs. 9.7 billion
if the MSM serve the 14-year required jail sentence.
Should the government decide to jail all
MSM in Kenya (as they are obligated by the laws in place), then they would cost
Kshs. 21.5 million to feed the MSM daily, Kshs. 7.7 billion annually and Kshs.
108.3 billion for the 14-year duration.
Yet since being gay is an immutable
characteristic, there is no guarantee that after it has incurred Kshs.108.3
billion it would not need to allocate the same amount all over again to
continue the jail terms for another 14 years ad infinitum. The government might
then want to just make Kshs. 7.7 billion annual provisions, to service sections
162, 163 and 165 of the penal code. For
the Kenyan tax payers, this amount is more than what the central government has
allocated to all the counties except for Nairobi and Turkana.
Indeed if the MSM were an independent county,
the 7.7 billion that would be allocated to feed them would be more than twice
the total budget of such counties as Migori, Kirinyaga, Laikipia, Isiolo, Lamu and
Kericho among others. Of the 47 counties only 9 would have total budgets that
are higher than the MSM allocation.
What then does this mean for advocacy for
legal reform? It means that if the government wants to keep these oppressive sections
of the penal code, then we must get them to pay for it. The MSM in Kenya must,
like all good citizens, report themselves to the police, since all criminal
conduct should be reported and prosecuted. It should be a badge of honor to
serve a sentence that finally enables government see the folly of retaining
these stigmatizing and discriminating sections of the law. I can see how, this
can in history become an interesting story, when those who volunteer themselves
narrate it, years after the reforms have come.
All that is needed is a 100 volunteers,
followed by another 100 e.t.c. and before you know it, the same people who now
shout in support of these laws; will change tune and say, there is no way Kenya
can retain a law, that costs more than the total combined budgets of Kirinyaga,
lamu and Isiolo Counties merely for cultural or sentimental reasons.
(And by
the way, after they have realized their folly, changed the law, and released
the freedom fighters, it will then be a good opportunity to turn around and sue
the government for abuse of your rights, and then demand compensation. Judging
by recent compensations awards, well over Kshs. 3 million – I think for any
unemployed MSM, this might also be a way to contribute to the Human Rights
struggle in Kenya and make yourself some money as you do it).
