CONSTITUTIONS DON’T MAKE HOMOPHILES

“That's what the niggers don't realize,” says Jack Nicholson’s character in The Departed (2006), “If I got one thing against the black chappies, it's this - no one gives it to you. You have to take it.” It is the same problem with Kenya’s gay activists, or so thinks our guest blogger. Njoroge Matathia of The Black Campaign returns to these pages with a demand for a more forceful political and social engagement on gay issues in Kenya. Arguing that in the eyes of the Kenyan public there are no homosexuals here, he concludes that the gay community has itself to blame for the perpetuation of that misconception. Matathia then proceeds to call for a more public approach to activism and falls slightly short of demanding that the gay movement radicalise.

We share these opinions, our emphasis though being on the need for radicalism, but if he has failed to express them succinctly in his rather long essay then the fault is his and not that of this blog.

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by Njoroge Matathia

“The union is abnormal. As an African and a church leader, I am ashamed. We should advice others not to do the same,”1 Anglican Archbishop Eliud Wabukala, said. He was responding to the news of a wedding between two Kenyan men held in London recently. A wedding that, according to media reports, Kenyan religious leaders have described as “unacceptable and unnatural”.

The Archbishop’s point of view I respect, it is his collation of Christianity and ‘Africanness’ that I sneer upon. I desired to respond to that, point out the irony in a casual call to ‘Africanness’ by someone whose job description begins with ‘Anglican’ but I held back telling myself that I, like him, would be missing the point. The point being: A wedding.

People love weddings. Love weddings because they are a celebratory rite of passage into that much revered social status of Married. Weddings usher in marriage, the only state within which societal sanctions allow you, nay, consider you respectable enough to have sex and to raise a family. Ideally, weddings are seen as a celebration of love between two people. A love so deep and special that those that share it declare it publicly and make a commitment to love and care for each other until death parts them.

Weddings let the whole world know that X loves Y. Weddings say: Charles Ngengi loves Daniel Chege Gichia and promises to do so, forever after. Love and companionship are the dominant tropes weddings sell with sex remaining a subtext too subtle to be discerned by the youngling flower-girls and pages who these events are meant to and do inspire.

But when Njenga wedded Gachie, the tables turned. Sex was elevated from subtext to issue- the only issue. Worse still, it was as though a sexual pervert had stood up in public and threatened: I, Charles Ngengi swear I will bugger that Chege guy to death! And over the next few days our MSM (pun intended) and online media spaces proceeded to work up and host what seems like a national disgust at the idea of, not just any men but two Kenyan men having sex with each other. For once an opportunity, to see and hopefully discuss homosexuality as more than sexual intercourse between people of the same biological sex, was ours to grab. Kenya, as a nation wasted that chance, the Kenyan gay community- its so called activists, specifically- squandered it.

The Kenyan gay community had a chance to say, look it is not just about sex, it is about human relationships. If we must talk about sex, then let us begin with the fact that two gay girls can meet, date and fall in love without ever having had sex. You know, just like with ‘normal’ people, if one partner is not ready then she just is not ready. And if you really care about that person and that relationship then you, well, wait. Sometimes a gay boy sees another boy and is filled with lust for him- you know, just the way a straight boy would feel about a girl- he propositions him and if the other is good to go, then he is good to go. Bottom line is casual sex is simply that, casual sex. If the issue is sex, then all sex is sex regardless of where your penis ends up. Thank you very much for your questions but we must now move on to a more important conversation: Sexuality.

Gay folks, in Kenya, did not do that. They neither pre-empted public debate’s, predictable, slide into how gross gay sex is nor attempted to shift it back to sexuality and lifestyle choices when it did. Right from the get go, the homophobes came out to play and for now the ball remains in their court. Maybe until Moreno Ocampo arrives next week and Kenyans can forget that small bit of gay silliness and get back to real issues: politics. Get back to politics the deafening silence of the Kenyan gay community having once again established the fact that there are no gay people in Kenya. That there are no gay Kenyans, just a few misguided youngsters who knowing no better allow themselves to be fooled by mzungus and their money into allowing themselves to be sexually abused. I mean, wasn’t that Ngengi guy lured by a mzungu guy to London? Now he is recruiting for them and we do not know what to do but leave our children to the grace of God.

Granted that, in truth, there exists a huge gay community in Kenya, nobody is gay in Kenya. A paradox it may seem until you consider that physical existence is never a guarantee of social existence. In colonial Kenya, the Africans it was said were to be seen but not heard, it is worse for gay people in Kenya today- they can neither be seen nor heard. In those days, the Africans lived at the social periphery- their existence known but their presence ignored- but gay people are living in social cemetery- unheard of and unknown. Gay people in Kenya are not ignored, they do not exist.

Because gay people do not exist in Kenya is it not preposterous to enshrine gay rights in our constitution; protect the interest of homosexuals as a distinct category? As we speak the Committee of Experts on Constitutional Review, charged with preparing a draft constitution soon to be put to referendum, has stated that they will not include gay rights in the draft. In a telling, if slightly ironic statement, the Nation reported a member of the committee, Mr. Otiende Amolo, as saying that

“[t]he new constitution is supposed to cater for the interests of both the majority and minorities, […] but same-sex marriages had been rejected by all religious groups.”2
Of great import too is the manner in which the issue of gay rights was, allegedly, presented to the committee. Mr. Amolo, it is reported, said:

"On several occasions some British MPs have approached us on the gay matter. They wanted us to include homosexual and lesbians' rights in the draft. But we told them that such a thing cannot happen because if we did so, a majority of Kenyans will reject the draft during the forthcoming referendum."3

Assuming the Mr. Amolo was not misquoted, then two things become self-evident. First, that consensus amongst all religious groups (their leaders to be precise) means consensus amongst all Kenyan minorities and majorities. Second, that gay rights were only put on the committee’s agenda (not by any Kenyan or group of Kenyans) by foreigners. By British MPs, specifically, in whose country two Kenyans have already found a safe haven for their ‘unnatural and unacceptable’ union. The two points together speak to the argument- proven through deduction by the lack of any memoranda from gay Kenyans to the committee- that there are no gay people in Kenya.

Big jump, maybe, from weddings to constitution making but with it a significant reframing of the homosexuality debate. To begin with, though the stance against homosexuality taken by the religious groups is based on their moral and doctrinal perspectives, by arguing these points in a political space, they politicise homosexuality. By not responding- in political spaces- to the politicisation of their way of life the Kenyan gay community cedes any political ground there is to be won. Importantly, by not being the first to politicise their interests, the gay community becomes relegated to the unfortunate place of second guessing the political agenda set by their opponents.

It can be argued that their existence being, technically, illegal in Kenya means that homosexuals cannot publicly present memoranda. But truth is that declaring oneself to be a homosexual in Kenya is not in and of itself illegal. While Kenyan law criminalises acts- sodomy and the cryptic ‘acts against the order of nature’- it is society that anathematises homosexuality as a concept, identity and lifestyle. Thus, a public declaration of ones homosexuality puts you in danger of social ostracism and mob justice rather than criminal prosecution and jail. Therefore, if the written law and social values were two cats, gay rights a mouse and we had only one bell, which one ought we to bell first? The more vicious one of course; social stigmatisation of homosexuality rather than the laws that purportedly criminalise it.

And the first steps towards fighting social stigma are a broader public awareness of the stigmatised social reality coupled with, hopefully, a level of acceptance or, at the very least, tolerance.

Unfortunately, acceptance or tolerance are processes rather than events; fortunately, what is sought is not universal acceptance or tolerance but a modicum of it. It is in this environment that changes in the law begin to make sense. Laws in themselves do not change people, reason does. If it were, by any wild chance, possible to enshrine the rights of sexual minorities in the Kenyan constitution now, the only thing the gay community would come out with is the lesson that constitutions do not make homophiles. Just look at South Africa and their much celebrated gay friendly constitution and then look at their statistics on the ‘corrective rape’4 of lesbians.

But all is not lost. The rights that gay Kenyans deserve can be achieved but they will have to be earned. They will have to fight for them on two fronts, the social and the political. In the social, an intense public awareness campaign around gay issues must be embarked on. One that begins with the subtle and progresses towards the blatant. Think of a move from pamphlets, stickers and other merchandise in not only English but also Kiswahili and other languages. These can be dropped at market centres, people’s doorsteps and such places. Guerrilla social marketing, if there is such a thing. With time it will even be possible to have a gay character in a local TV show. The key thing, though, is to target rural areas more than the urban ones.

The political front is the hard part. The Kenyan gay community will need martyrs for this. It must be borne in mind that all significant political change in this country has been cut with blood. Why should gay people hope to be any luckier? They must get out on the street and march for their freedom, wipe off the spit and blood from their torn bodies and souls and march again. History has taught that easy civil rights victories are few and far in between. In the meantime gay Kenyans must ask themselves not what laws are against them but what laws are for them.

What laws protect them not as homosexuals but as both citizens of Kenya and human beings? Does the Sexual Offences Act limit rape to actions against heterosexuals? Does the penal code say, categorically, that the assault, infliction of grievous bodily harm or the murder of a homosexual is not a crime? Because lawyers, judges and policemen are products of our homophobic environment, it means that crimes committed against homosexuals do not get prosecuted, do not find their way into civil court and if they did the offender could claim the victim’s sexuality as a mitigating circumstance or cause for extreme provocation. But for how long can a precedent setting prosecution remain elusive? Haven’t we seen one yet?

It is alongside laws that rights and responsibilities exist. One great argument proposed by sexual rights activists, and one that I have used often in other writings, frames sexual orientation within the language of rights. That sexual (orientation) rights are human rights. Unfortunately rights are a moral issue that can only become legally relevant when they are politicised. And as we have seen, the Kenyan gay community has lost both the moral and the political argument. They have lost by default merely by not being seen and heard, in any significant way, enough to count as a constituent demographic group in Kenya. They have lost the advantage of having drawn first blood; stepping up and stepping out to frame the public discourse on homosexuality in their favour. They have refused to exist validating the myth of their non-existence through inaction.

It is this lack of political action and a refusal to engage the public on their issues that irks me the most about gay activists in Kenya. If they are involved in any activism at all then it plays out in formal spaces socially and intellectually distant from the broader publics they need win over. They play safe- talking heads at conferences that preach to the converted- while the world out there is living in the blissful heathenism of homophobia. “We are here, we are gay,” they whisper to each other inside their closet and then wonder, at the next exclusive conference, why no one knows they exist.



1. http://www.nation.co.ke/News/-/1056/673614/-/uo10l1/-/index.html
2. http://www.nation.co.ke/News/-/1056/674074/-/uo1kcr/-/index.html
3. http://www.nation.co.ke/News/-/1056/674074/-/uo1kcr/-/index.html
4. http://en.wikipedia.org/wiki/Corrective_rape



Njoroge Matathia is a Nairobi based writer and social scientist. He can be reached at http://theblackcampaign.org Check that site over the next few days for a downloadable PDF version of this essay.