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the legislature is yet to put in place a law that promotes the constitutional principles of equality and neither has it repealed laws that discriminate against sexual minorities.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.