By L. Muthoni Wanyeki
The Prime Minister’s declaration in Kibera, widely reported in the media, to the effect that there was no need for people to be gay and that gay people should be arrested, was met by consternation and surprise by the human-rights community — here and elsewhere.
To his credit, he recanted fairly quickly, clarifying that he had merely been explaining the provisions in this respect in the new Constitution and that he’d neither issued orders for the arrest of gay people nor intended to in the future.
But the damage done in some ways has not been reversed.
His declaration unleashed a public wave of homophobia — and triggered yet more harassment for extortion purposes of Kenyans perceived to be gay by the police.
The former was evidenced by letters to the editor and discussions on Kenyan listserves.
And the latter by testimony from those unfortunate enough to have come to the attention of those patrolling the streets.
What this all showed is this: Kenya is not exempt, as we’ve liked to believe, from the extreme levels of homophobia witnessed in the past few years across the continent and, most notably for us, across the border in Uganda.
What has prevented its public expression here, in the main, is that the state has been reluctant to let itself be dragged into the fray.
And because of that lack of state support, homophobic citizens have, by and large, refrained from acting extremely on their homophobia
The question that thus pertains is whether that state reluctance to pronounce on “gay rights” will hold into the future.
In answering that question, we need to know what has informed that state reluctance to date. And we need to know what we will do if it does not hold.
I think the state has been fairly modern and pragmatic to date. It has shown that it does not consider it its duty to impinge on the private domain — except where not doing so would pose dangers or risks to individuals.
For example, with respect to violence against children and women in the context of the family.
It has, to date, only prevaricated when absolutely pushed to the wall by the family values and morality crowd.
Remember, for example, the drama about sex education in schools and condom use in the mid-1990s.
But, as soon as it has been able to, it has reverted to silence.
And, of course, sections of the state have always been more than ready to make political hay while the sun shines — if there is political capital to be gained or lost at the expense of this position of silence, then the silence gets broken until that particular moment has passed.
Witness, more recently, the positions of some of those campaigning against the new Constitution.
Unfortunately for the state, the ability to adopt this sort of passive resistance to being forced into domains it knows it cannot go to may be ending.
This has already been clear for many years in the public health domain — our national Aids policy, for example, recognises unequivocally the needs to target men who have sex with men for prevention and treatment purposes.
The Minister for Special Programmes Esther Murugi has spoken to this effect recently.
And, when castigated by the family values and morality crowd for doing so, got dry and matter-of-fact support from the Minister of Justice, National Cohesion and Constitutional Affairs Mutula Kilonzo.
Who said that every Kenyan, regardless of her or his gender identity and sexual orientation, was entitled to equal access to healthcare services.
This is the bare minimum position that the state can and should take.
That our Constitutional obligations on equality imply equal protection under the law and equal access to any and all public services.
Regardless of people’s understanding of and personal opinions of gender identity and sexual orientation, they have to not only accept and abide by the state’s position on this — but also not undermine that themselves.
Meaning that they cannot attack, physically or otherwise, or discriminate against any Kenyan themselves.
But the state — and ourselves — are going to have to contend with more than bare minimum positions fairly soon.
An active and organised lesbian, gay, bisexual, transgendered and intersex community has emerged.
Yes, believe it or not, like it or not, there are gay Kenyans. The community is understandably angry — at being referred to as un-Kenyan, at being stigmatised, at being thrown out of homes, schools, places of employment.
At facing violence. At not getting appropriate healthcare. At the homophobia of religious institutions, who act as though they do not exist (except as morally depraved people in need of help and redemption). At the sensationalist coverage by the media. And so on and so forth.
The LGBTI community is seeking to change all of that. As it becomes more and more open and vocal, the backlash will only increase — at least in the short and medium term. And that state is actually going to have to help it both move forward and challenge that backlash.
That is why the Prime Minister’s declaration created such alarm.
It was entirely the wrong signal to send to the masses of the public who either do not understand the issues or are virulently opposed to them.
It was taken as a signal for a free-for-all. There can be no such free-for-all — democracy means not just rule by the majority but protection of the minority.
A test of our new Constitution is whether in fact the state will live up to that democratic demand.
L. Muthoni Wanyeki is the Executive Director of the Kenya Human Rights Commission (KHRC). She serves as a Board member/regional advisor for several Kenyan and other organisations including: the African Leadership Centre (ALC and African Women's Fellowship Programme of the Conflict, Security and Development Group (CSDG) of King's College London (KCL); the Afrimap Project and the Justice Initiative-Africa of the Open Society Initiative (OSI) in Johannesburg and Abuja respectively; Akina mama wa Afrika (AmwA) in Kampala; and the Forum International de montreal (FIm); and the Institute of Economic Affairs (IEA) in Nairobi.