CAPITULO I Normas generales
Artículo 90. Aplazamiento y fraccionamiento de autoliquidaciones
1.
The Context
When the subject of sexual orientation and gender identity comes up for discussion in many parts of the world, it is a lot of the time mistakenly assumed that the needs of lesbian, gay, bisexual, transgendered or intersexed peoples are anything other than human and, hence, that contemplating or acting to ensure their rights would cause societal melt-down. IN fact, the discourse on the rights of sexual minorities must be understood as the discourse which informs the protection and promotion of the rights of all human beings. The human rights principles informing and driving human rights universally also in totality coincide with the rights of sexual minorities.
In this regard, a Kenyan lesbian notes:
We are saying that we exist and that we are part of society. We want to be treated as people because we are people. We are human beings living in the same world.27
Speaking about Uganda, another lesbian activist says:
When Ugandans hear that we are advocating for gay rights they imagine that we want more or extra rights, but no; we want what belongs to us which was robbed from us; equal rights which we are entitled to just like any other Ugandans.28
Simply put, then, under universal human rights standards, everyone is entitled to enjoy all human rights as well as to enjoy equality before the law without discrimination on the basis of sexual orientation or gender identity. Furthermore, everyone is entitled to equality before the law and the equal protection of the law without any such discrimination, whether or not the enjoyment of one of their other human rights is also affected. As such:
• The law should prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination;
• A person should not be discriminated against in the work-place, in educational institutions or elsewhere simply because of their sexual orientation or gender identity or other status; and
• Similarly, punitive sanctions which criminalise homosexual acts should, therefore, be repealed.
2. Strategies for the Purposive Application of Sexual Rights in
Kenya
Speaking about the role of human rights as a strategy for resolving the violation of sexual rights, Dale notes:
The language of the universality of human rights is powerful; no movement should retreat from it. In isolation, though, it can seem like a club browbeating developing societies and cultures to conform. It needs constantly to be accompanied by the language and knowledge of rights’ interrelatedness and indivisibility. On the one hand — and for example — understanding the struggles of women for civil equality is inseparable from understanding the economic barriers to equality across the board. On the other hand, locating the
struggles of particular groups in connection to other struggles for justice, and an awareness of barriers they may share, is strategically indispensable. 29
Luckily, in this vein, Section 17 of the Kenya National Commission on Human Rights Act30 requires the Commission, in the performance of its functions: (a) to accommodate the diversity of the Kenyan people; (b) observe the principle of impartiality and gender equity; (c) have regard to all applicable international human rights standards and in particular, to the fact that human rights are
indivisible, interdependent, interrelated, and of equal importance for the dignity of all human beings; …
It is a truism that some strategies for achieving the realisation of sexual rights as human rights will be more effective than others. The employment of some strategies may hurt the cause more than it may benefit it; and some strategies will be impossible to implement at least in the short term. Below I discuss some of the avenues available for human rights activists.
(a) Constitutional interventions
The Yogyakarta Principles require states to embody in their national constitutions: • “… The principles of universality, interrelatedness, interdependence and
indivisibility of all human rights …” (Principle 1);
• “… The principles of equality and non-discrimination on the basis of sexual orientation and gender identity …” (Principle 2); etc.
Including sexual orientation as a ground upon which discrimination shall be outlawed in the Constitution will for the foreseeable future remain a pipe-dream entertained by only a few civil society types. As long ago as 1997, proposals made under the aegis of the Kenya Community Media Network (KCOMNET)31 included specific protection against discrimination on the ground of sexual orientation; but such drafting formula has not been precedent-setting in Kenyan legislation. Clearly, clamouring for this inclusion is not a viable strategy in the short or medium term.
Perhaps rather obviously, Section 82 of the Constitution of Kenya, which
establishes Kenya’s anti-discrimination normative framework makes no mention of sexual orientation or gender identity as grounds for non-discrimination. Even Section 70 of the Constitution fudges the right to privacy by merely providing for protection for a person’s “privacy of his home and other property …”; thereby giving the clear indication that the Constitution’s main aim is to protect home and property rather than the individual’s privacy as such. This situation may be contrasted with Article 17 of the ICCPR which makes specific reference to the effect that “…No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”.
Kenya’s ongoing constitution-making process has proved largely unsatisfactory for people making claims for protection on matters of sexuality (in relation to a woman’s right of choice32 and rights of lesbians and gays). Article 42 of the Proposed Constitution of Kenya, 2005, included the following retrograde provisions in this regard:
(2) Every adult has the right: (a) to marry a person of the opposite sex, based upon the free consent of the parties; and (b) to found a family.
3) A person shall not marry another person of the same sex.
27 - Pauline Kamanyi of the Gay and Lesbian Coalition of Kenya, cited in “World Social Forum: Long Fight for Justice for Homosexuals”; Joyce Milam; Inter Press Service News Agency; January 23 2007. 28 - Jacqueline of Sexual Minorities Uganda; cited in Queer eye for the wsf; interact. newint.org/blog/adam- maanit/queer-for-the-wsf; January 25 2007.
29 - Philip Dayle with Alok Gubta: “Beyond the Polemics: The Continuing ‘Gay’ Rights Project and the Post-Colonial South”; paper presented at the Experts’ Meeting on Sexual Orientation, Gender Identity and Human Rights; Yogyakarta; 6-9 November 2006; Mimeo.
30 - Act No. 9 of 2002. 31 - Bernard Sihanya and Lawrence Mute: “Community Broadcasting in Kenya: Strategic Policy and Legal Considerations”; KCOMNET; 1997; (Mimeo).
In the same vein, Article 37 pointedly excludes sexual orientation as a ground of non-discrimination, for example, in contradistinction to the Constitution of South Africa which specifically provides for non-discrimination on the ground of sexual orientation.33 Kenyans will not shift their prejudices against lesbian, gay, bisexual, transgendered and intersexed people in a hurry; and interpretive mechanisms, as I shall show below, must be deployed to enable the rights of sexual minorities. (b) Amendment or repeal of legislation
The Yogyakarta Principles require states to amend or repeal legislation, including criminal laws:
• … To ensure its consistency with the universal enjoyment of all human rights (Principle 1);
• That prohibit or are, in effect, employed to prohibit consensual sexual activity among people of the same sex who are over the age of consent … Principle 2); • … Ensure that an equal age of consent applies to both same-sex and different-
sex sexual activity (Principle 2); etc.
Section 162 criminalises consensual homosexual conduct. It provides:
Any person who – (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for 14 years, provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for 21 years if (i) the offence was committed without the consent of the person who was carnally known; or (ii) the offence was committed with that person’s consent but the consent was obtained by means of force or threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.
Section 163 proceeds to state that:
Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.
It is a truism that as a microcosm of society, our Legislature will remain homophobic for many a year to come. The Legislature requires to be provided with a reason, a justification or an excuse to undertake certain actions. Repealing
so-called “laws against morality” in the Penal Code may be undertaken in the medium term as part of an overall scheme to review the penal law in Kenya. Technocratic institutions such as the Kenya Law Reform Commission and the Kenya National Commission on Human Rights would be handy in this regard by profiling offences against morality which have been used to victimise sexual minorities. Regarding sodomy laws, the 1956 report of the Departmental Committee on Homosexual Offences and Prostitution chaired by Sir John Wolfenden in the United Kingdom needs to be socialised to Kenyan society. Kenyans need to learn that consequent to this Report’s conclusion that homosexual behaviour between consenting adults in private was part of the “realm of private morality which is not the law’s business” and should no longer be criminal”; Britain, the country which bequeathed us its sodomy laws, repealed them. In contrast, we – the former British colonies – continue to enforce them.34 Nonetheless, Dayle makes the essential point that contentions for decriminalizing sodomy laws should not draw their inspiration merely from the decriminalization discourse emanating from the West since unacceptable doctrines on matters such as anti-terrorism seen as Western impositions also emanate from such countries. Instead, arguments for the repeal of these laws should become more home based including by taking advantage of traditional value systems.35
The suspicions with which Kenya’s Parliament greeted proposals for what eventually became the Sexual Offences Act, 2006 – allegedly because it sought to legalise homosexuality via the back-door - makes it unlikely that the Penal Code will be amended in the immediate future. However, it is possible that seeking the repeal of the laws may be a medium term strategy.
(c)Judicial interventions
Indeed, all is not gloom. Section 82 of the Constitution makes a number of provisions of interest to the constituency, as follows:
• Subsection (1) provides that:
… No law shall make any provision that is discriminatory either of itself or in its effect.
• Subsection (2) provides that:
…No person shall be treated in a discriminatory manner by a person acting by virtue of any written law or in the performance of the functions of a public office or a public authority.
32 - Article 35(2) (“The life of a person begins at conception”) was intended by activists to foreclose a woman’s reproductive choices; although in the event, Clauses (1) and (3) were thankfully drafted in a more open-ended way, leaving leeway for Parliament to make legislation to determine circumstances under which the right to life might be proscribed and circumstances under which abortion may be allowed. 33 - Section 9(3) of the Constitution of the Republic of South Africa, 1996
34 - Dayle supra 29.
• Finally, subsection (3) defines “discriminatory” to mean:
… affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
Section 82 of the Constitution is a provision of general application throughout the country and among all communities. It is quite feasible for an activist judiciary to find that even though sexual orientation and gender identity are not stated expressly as grounds for non-discrimination, this applies. Significantly, the Human Rights Committee has determined that the term “sex” in ICCPR Articles 2(2) and 26 does include sexual orientation.36 Even more exciting is the fact that courts may still have an opportunity to interpret certain clauses in the Proposed Constitution of Kenya if they are eventually legislated in their present form. Article 37(1) of the Proposed Constitution of Kenya states:
The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
At least three questions pertinent for interpretation may be noted here: First, how would the term “sex” be interpreted? More importantly, how would an an activist court interpret the word “dress”? Similarly, how would it interpret the word “birth”?
Practical difficulties present the likelihood that a Kenyan court could strike down anti- sodomy legislation in the Penal Code. No person to our knowledge has contested a charge under Penal Code Section 162, since obviously, a homosexual couple would have to be caught in the act for a case to be prosecuted successfully. Nonetheless, civil society organizations and the gay constituency itself could seek declaratory/interpretive decisions from the courts.
In National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others,37 South Africa’s Constitutional Court held that the Common Law offence of sodomy and other statutes prohibiting sexual conduct between men were not reasonable or justifiable limitations on the rights of gay men to equality, dignity and privacy; and that they were unconstitutional. In his concurring judgment, Sachs (J) stressed the Court’s jurisprudence on the centrality of dignity
and self-worth to the idea of equality, and said that inequality is established not simply through group-based differential treatment, but through differentiation which perpetuates disadvantage. This leads to the scarring of the sense of dignity and self-worth associated with membership of the group, in this case the gay and lesbian community. In Sachs J’s view, the Constitution requires that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal is no longer the basis for establishing what is legally normative. The scope of what is constitutionally normal has expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference.
(d) Administrative action
Administrative action will be the first port-of-call where pragmatic engagements may happen between sexual minorities and the State. In this respect, the following must be exploited:
• The role of administrative structures such as Ministries and the Kenya National Commission on Human Rights must be to deploy human rights in their interdependence and indivisibility not necessarily to profile sexual minorities but so as to provide protection and redress where their human rights alike the human rights of other people are violated;
• The anti-discrimination paradigm demands and would expect all public institutions to ensure that a person’s rights to life, work, education, health, etc. are not undermined because of their sexual orientation or gender identity; • A police officer on the beat who realises that a mob is chasing after a person
because of their gender identity must immediately provide protection for such person;
• Similarly, a person who complains to the Labour Department or the Kenya National Commission on Human Rights that she has been sacked because the employer discovered she was a lesbian must be succoured;
• When incitement to hatred is perpetuated with the foreseeable consequence that a community may be targeted for injury or killing, Government institutions must investigate and punish such perpetrators; and
• The HIV/AIDS pandemic continues to offer excellent opportunities for mutual engagement and recognition. Any modern health service has to acknowledge
36- See Evatt: supra 20.
37 - http://www.law.wits. ac.za/judgements/1998/gayles. html
the need to provide men who have sex with men or women who have sex with women with necessary information to ensure they do not undertake unsafe sex.
IV: Conclusion
The rights to sexual autonomy and bodily integrity have growing foundations in international human rights communities. The precedents above have demonstrated that the United Nations and some States already recognize that sexual orientation and gender identity is a human rights issue. However, there is a great need for comprehensive laws that specifically protect the rights and freedoms of lesbian, gay, bisexual, transgendered and intersexed people. These laws will not be passed readily or easily in this country; but the possibilities are not foreclosed. In the meantime, Government institutions, inter and non-governmental institutions as well as community based organizations should pragmatically and purposively engage in interventions which will protect the rights and livelihoods of sexual minorities.
However, a last cryptic thought that I found which may be the next chapter of this debate:
“In these days of political correctness, the battle will not be fought on the ‘rights’ front. Everything is permissible. It will be on the ‘responsibilities’ front. Not everything is beneficial.”38
What could this mean?
38 - Mary G: “Code Name Stubborn: of Gays and their Rights”; Sunday Standard; January 20 2007.