An examination of LGBTQI rights in Kenya: gains from the 2010 Constitution

Abstract

Every society has a normative system designed to determine what is right and wrong. Much of what is ordinarily considered right and wrong arises from of the conventions that have evolved in many societies are those concerning sexual relations and therefore sexual expression and practices sexuality. Sexual expression and practices are in many societies a taboo topic. Individuals are expected to conform to socially constructed gender roles. Deviation is frowned upon. In Africa, there is a contradiction in attitude towards sex and sexuality. Many people shy away from discussing sex and overt public display of affection is not too common. Yet, African music, dance and other art forms exude eroticism and sexuality. Aspects of sexuality that are influenced by culture include values, such as decisions regarding appropriate sexual behaviours, suitable partner or partners, appropriate age of consent, as well as who is to decide what is appropriate. African nations that claim to base her social values and practices on African culture is Kenya. Therefore, when one expresses their sexuality in a manner that contradicts the norm, it is not only immoral but is also socially criminal. Such individuals become social pariahs who are not expected to enjoy any rights within the community. However, the Constitution of Kenya (2010) by granting an array of rights without exception and including all persons, provides communities hitherto deemed criminal such as the LGBTQI an opportunity to enjoy all the human rights granted under Chapter four of the Constitution. As a result, this Constitution has been lauded as one of the most progressive in Africa in recent times. Given that the constitution is the supreme law in Kenya, then Sections 162, 163 and 165 of the Penal Code Cap 63 Laws of Kenya clearly offends it and regrettably violates the sexual rights of the lesbian gay bisexual transgender queer and intersex (LGBTQI) community in Kenya. In light of this contradiction, repeal of these sections would contribute to promoting the rights of LGBTQI community in Kenya.