Judge appointments spark gay rights debate in Kenya

Will gay law reform be on the agenda if two controversial nominees interpret the country's new constitution?
Martyn Drakard | 6 June 2011
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A fierce debate has erupted in Kenya over the country’s proposed new Chief Justice and deputy Chief Justice. Although opinion polls say that the vast majority of Kenyans are happy with Dr Willy Mutunga and Nancy Baraza, Christian groups are up in arms.

Here is the background: according to a new constitution approved by referendum last year, a judicial commission nominates candidates, who have to be approved by the president and the parliament. The president has given them a thumbs-up and this week they will be grilled by a parliamentary committee.

The nominee for Chief Justice, Dr Mutunga, is co-founder of the Kenya Human Rights Commission, which receives funding from a German aid agency to foster gay rights and get acceptance for sexual orientation. The Commission also supports liberal moral views on the right to life. In 2003 article, Mutunga wrote: “I think the influence of religion in this country is very harmful. They don’t allow proper sex education in school; they don’t allow condoms in a country with HIV/AIDS. That kind of rubbish makes me very mad.” In 2006, he facilitated the registration of the Kenya Gay and Lesbian Trust.

He has changed his religious beliefs several times and is now in divorce proceedings in relation to his second marriage. A stud in his left ear has provoked dark mutterings from his opponents.

The nominee for deputy, Nancy Baraza, is doing her PhD thesis at Kenyatta University on gay rights. She was head of an international organization of women lawyers called FIDA (Kenya). FIDA has made positive moves for women’s rights, but it also supports abortion rights and is campaigning to liberalize the legal status of marriage.

The new constitution requires all judges to be “of high moral character, integrity and impartiality” – qualities which the Catholic bishops questioned, in a hard-hitting statement:

“We need people with a judicial philosophy that reflects natural law, the Kenyan religious and African cultural values, including our universal respect for life, our recognition of the importance of family wellbeing and our appreciation of the role of religion in public and private life… The excessive emphasis on academic excellence and radical reformism is not sufficient. Justice fundamentally involves moral order.”

Why has there been so little reaction? Why is Kenya so different to neighbouring Uganda where a draconian bill punishing homosexual acts has been tabled in parliament?  

Kenya, and especially Nairobi, is much more Westernised. Nairobi hosts the world headquarters of UNEP (United Nations Environment Programme), has good communications, is more cosmopolitan, more secular, more disciplined and better organized. For example, the birth rate in educated, middle-class families has been declining for several years, whereas Uganda still has one of the highest birth-rates in the world despite the growth in prosperity of the past two decades.

Since independence thousands of Kenyans have gone abroad for studies and many of them have returned with views they picked up in London and New York. Add to that an aggressively liberal media, political leaders without ethics or principles, and you have a cultural revolution.

Furthermore, Kenyans were grossly deceived in debate over the constitution. Their political leaders told them (and too many Kenyans do as their leaders tell them) that, admittedly, imperfections would be ironed out in parliament later; that they should vote to build national unity and to get rid of the antiquated attitudes in the old constitution.

In Uganda opposition to gay law reform was spearheaded by the Pentecostal churches, who took it to the university campuses and other forums with great success. Other churches and the Islamic community supported the bill too, apart from its more severe penalties. The educated elite openly backed it. Only journalists half-heartedly and very cautiously opposed it. Political leaders did not need to say anything; in this the people had spoken. Uganda is more traditionally African and respects much of its age-old culture – and abortion and homosexuality are not part of it.

Kenya, on the other hand, stands to lose its good African values, and within a few years could be facing many of the social, moral problems of modern Western society. I just hope I shall be proved wrong.

Martyn Drakard writes from Kampala, Uganda.

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