The Impact of Heteronormativity on the Human Rights of Sexual Minorities: Towards Protection Through the Constitution of Kenya 2010
Abstract
Heteronormativity is Kenya’s culture and it permeates all social institutions. Due to this
heteronormative culture, lesbian, gay, bisexual and transgender (LGBT) people or sexual
minorities in Kenya suffer injustices arising out of discrimination, oppression and
marginalisation. These injustices are perpetrated by both State and non-state actors alike,
consequences of which are LGBT deprivation of social, economic, cultural, political rights. The
Constitution of Kenya 2010 is endowed with normative and institutional provisions that could
help alleviate the suffering of sexual minorities. Through the Bill of Rights and other countermajoritarian
provisions throughout the Constitution, it has the potential to provide a framework
for the protection and promotion of the human rights of sexual minorities. Specifically, the
Constitution embraces the international human rights principles of equality, equity,
nondiscrimination and affirmative action which are vital for promotion of equality, equity and
nondiscrimination of all people regardless of their sexual orientation or gender identity. Further,
the institutions of parliament and judiciary under the Constitution have the express mandate to
legislate and interpret the law in a manner that is in consonance with these principles. However,
so far, the legislature is yet to put in place a law that promotes the constitutional principles of
equality and neither has it repealed laws that discriminate against sexual minorities. The
judiciary has so far demonstrated a danger of dual interpretation of the law on matters
concerning sexual minorities, with some judges adopting critical and transformative approach to
decicion making, while the majority still take the conservative, textual and dogmatic approach to
interpretation of the Constitutional principles, thus posing danger to the right to enjoy protection
by sexual minorities. This jeopardises the protection of sexual minorities from injustices of
discrimination, oppression and marginalisation that they have endured for many years. For the
equality and nondiscrimination to be enjoyed by sexual minorities, the legislature and the
judiciary need to move away, and have the constitutional duty to move away from the traditional
conservative approach to decision-making and embrace a more fluid, critical and transformative
approach in their actions. The study responds to fundamental questions about the nature and
impact of heteronormativity on the human rights of sexual minorities and how do they navigate
through heterosexism; how international human rights principles and standards have been
applied through legislative and judicial bodies in other jurisdictions to protect and promote the
human rights of sexual minorities; how the legislature and the judiciary in Kenya can adopt
more critical approaches to law making and law interpretation in order to protect and promote
the human rights of sexual minorities in line with the Constitutional principles of equality and
nondiscrimination; and in view of the pervasive and multifaceted nature of heteronormativity,
what legal and non-legal mechanisms can be put in place to protect sexual minorities in Kenya.
Through John Finnis’ transformative and critical principles of practical reasonableness and the
deconstructive and norm distablising Queer theory as theoretical framework, the study proposes
a new approach to law making and law adjudication by the legislature and the judiciary
respectively in order to move away from the binary understanding of sexual orientation and
gender identity. The study finds that the perpetration of human rights violations against sexual
minorities continues unabated in spite of the fact that the Constitution of Kenya 2010 guarantees
all people equality and nondiscrimination before the law and institutions of justice which are
empowered to ensure compliance with these principles in their decision making actions. The
study also finds that Kenya’s legislature and judiciary are both still rooted in dominant
paradigms which correspond to traditional sex and gender binaries and hence have been unable
to make law to protect sexual minorities.
Methodologically, the study adopts Queer qualitative methodology, which it distinguishes from
scientific qualitative methods which are rooted in traditional scientific assumptions towards
research. For narrative analysis, the study uses a combination of Foulcadian Discourse Analysis
(FDA) and hermeneutic phenomenology as its tools and methods of analysis. It is hoped that the
findings of the study can inform the legislature, the judiciary, policy-makers, researchers,
academicians, civil society, religious organizations and the general public of the pressing need to
explore both legal and non-legal mechanisms to realize justice for sexual minorities.
Publisher
University of Nairobi
Rights
Attribution-NonCommercial-NoDerivs 3.0 United StatesUsage Rights
http://creativecommons.org/licenses/by-nc-nd/3.0/us/Collections
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