Interrogation of Legality Debate and the Human Rights Question on Homosexuality in Kenya

Abstract

This study sought to extensively interrogate the legality debate, existing policies, and human rights question in respect to homosexuality. By extension this study also examined the church’s position on the LGBT discourse in Kenya. In recent years Kenya has witnessed spirited agitation for recognition and acknowledgment of the LGBT persons, orchestrated by the Lesbian, Gay, Bisexual and Transgender (LGBT) community. This quest has also been boosted by the pro-LGBT human rights activists and organizations, which have been pushing for homosexuality to be considered as a component of human rights. In Kenya LGBT persons still face oppression, stigma and rejection within our conservative societies despite their wish to be accepted as a sexual minority. There are documented homophobic incidents of sexual and physical assaults meted out on the LGBT persons. There is also the pressure on Kenya from the West particularly countries that have legalised homosexuality. The NGO agenda in filmmaking in Kenya has been attributed to Rafiki film. Dr Ezekiel Mutua former KFCB CEO strongly perceived Rafiki film as a Western tool used to sell and popularise homosexuality agenda in Kenya. The ban of Rafiki film raised concerns and uproar on violation of freedom of expression. The ban led to a legal suit pitting the film’s director Wanuri Kahiu and KFCB. The intriguing reality was the Penal Code Section162-165 in Kenya seemed to have been contradicting the provisions of the Kenya Constitution 2010, Article 27 which provides extensive protection from discrimination of any nature. This study keenly interrogated this unlikely scenario. From the findings of the study, the policies against homosexuality in Kenya are still discriminative to the LGBT community and deprives them of even the freedom of expression. There is still a stark disparity between the provisions of the constitution and the penal code sections 162-265. The Kenya media has played a huge role in enhancing visibility of the LGBT community and their agenda, by according considerable airtime and salience to LGBT discourse in Kenya. The church is still reluctant to accepting homosexuality but welcomes LGBT members to worship. Desk study was used to collect secondary data and key informant interviews were used to collect primary data. The data was analysed through content analysis and presented in prose form.