Will Kenya Legalize Homosexuality?

Gay marriage, say some Kenyan religious leaders, is “Un-African.” Further, it is against the law. According to the Kenyan legal code, sodomy is illegal, so says section 162. But when was the last time in Kenya that anti-sodomy laws were enforced against married couples? Of course “sodomy,” as it is called, is de facto legal among consenting adult heterosexual couples, but it is a codified way that gays are kept at the margins of society. Kenya, like most African societies, is very conservative socially. Just this month, neighbors of a gay couple in Kisii County, in western Kenya, actually arranged for them to be arrested. Luckily, they were only "sentenced" to go to counselling. “I don’t believe taking them to court will help,” the Kissii University counselor said. Charmed, I’m sure.

Kenya is a haven for LGBT refugees in East Africa. Sexual and gender minorities activist Dennis Nzioka has counted 400 LGBT refugees in Nairobi. Most, Nzioka counts 90%, come from Uganda, one of the worst countries in the world to be gay. Kenya, by the standard is a haven, yes, but most certainly not a paradise. Out of the 54 countries recognized by the African Union, Kenya is among the 37 countries that have criminalized homosexual acts. There is, it should be noted, no criminal law against homosexuality in 16 African countries, including: Burkina Faso, Cape Verde, Central African Republic, Chad, Congo-Brazzaville, Cote d’Ivoire, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Gabon, Guinea-Bissau, Madagascar, Mali, Niger, Rwanda and South Africa, which is considered the most socially liberal country on the continent.

Homosexuality, of course, persists, in Africa as well as everywhere else, and some communities even historically allow women to marry women. “If a woman has never had any children, she takes on what is regarded as the male role in a marriage, providing a home for the younger woman, who is then encouraged to take a male sexual partner from her partner's clan to become pregnant,” a BBC article explains. “Her offspring will be regarded as the fruit of the marriage.” Why can’t the country allow grown adults to behave as adults, and make their own sexual decisions without the state getting involved? How is one to explain such hypocrisy?

Violence targeted towards sexual behavior is sadly all too common on the continent. An incredibly honest and heartwarming article, by “Concerned Parent” to The Star says so much about being gay in Africa. “The Constitutional Court last week heard a joint case asking it to repeal sections of the Penal Code used to discriminate against people like my daughter,” the article states. “The case reminds the court that these laws, Sections 162 and 165, are incompatible with our Constitution’s commitment to freedom, privacy and dignity for all Kenyans.”

Being gay in Africa is always fraught with danger, based on the conservative traditional societies, and the aforementioned criminal statutes. The heartbreaking video of a gay man being attacked in Mali is a visual reminder of that fact.

Now Kenya High Court is visiting the matter. Kenya National Gay and Lesbian Human Rights Commission, a Nairobi-based LGBTI rights advocacy group, is seeking to overturn section 162 and 165, provides for up to five years in prison for “gross indecency with another male person.” Both sections affect thousands of LGBT Kenyans, who face up to 14 years in prison for essentially their state of being.

Is Africa ready for same sex marriage?

According to the Pew Research Center, Pew Global Attitudes Project, in sub-Saharan Africa, at least nine-in-ten in Nigeria (98%), Senegal (96%), Ghana (96%), Uganda (96%) as well as Kenya (90%) believe homosexuality should not be accepted by society. Still, it should be noted that government often sets the tone, elevating the social order in the process. In 2012, Vice President Biden famously forced his running mate’s hand on gay marriage by committing a gaffe by telecasting his own position on the matter. In his memoir, Promise Me, Dad, Biden talks about the infamous moment when the Obama campaign was forced, before their time, to acknowledge gay marriage:

“Even a ‘Biden gaffe’ that sent the White House and 2012 campaign staff into paroxysms — when I got out ahead of the president by saying on Meet the Press that I was ‘absolutely comfortable’ with gay marriage and that gay couples were entitled to all the same civil rights and civil liberties as heterosexual couples — didn’t cause any real disturbance between us. 

“I went into the Oval Office the day after and the president just stood up and walked around his desk with a big grin on his face. 

“‘Well, Joe’, he said, ‘you told me you weren’t going to wear any funny hats or change your brand’.”

And, as a result, Obama finally took the liberal stance on gay marriage. The world did not end, the seas did not part and Obama and Biden actually won the campaign. An interesting final note is that Mitt Romney, the man who Obama beat, was against gay marriage.

There is much Obama could teach the leadership in Kenya.


Cover photo via Vice News