Let’s get our facts straight – so to speak. Rafiki is Kenya’s – one of Africa’s – first films with an LBGTI (Lesbian, Bisexual, Gay, Transgender, and Intersex) theme. It goes where African movies haven’t gone before. It boldly probes erotic love between two young African women amidst a cauldron of family, social, and political pressures. The movie will make history when it becomes the first – FIRST – Kenyan movie to premiere at the hallowed Cannes Film Festival in the French Riviera. But rather than laud and celebrate this towering achievement, Mutua and his homophobic state cohorts have banned the film in Kenya. The international community will watch and celebrate it while Kenyans will be denied the product of their own genius. Mutua, the government’s censor, stated without a hint of irony, that he banned the film because of “its homosexual theme and clear intent to promote lesbianism in Kenya contrary to the law.”
With this kind of bilious attitude, let’s hope Mutua can’t recognise a gay person on the street. Like ex-Attorney General Githu Muigai, Mutua is among a cabal of homophobic state officials who haven’t read the 2010 Constitution. It’s true Sections 162 and 165 of the Penal Code, a colonial-era relic, criminalises “carnal knowledge against the order of nature.” This is understood to historically mean a prohibition of same-sex relations, especially among men. A violation can attract a maximum penalty of 14 years. It’s an unconscionable law.
Mutua and ex-AG Muigai don’t understand Article 27 – the Equal Protection Clause – of the 2010 Constitution. In 27(1), it provides, unambiguously, that “Every person is equal before the law and has the right to equal protection and equal benefit of the law.” In 27(2), it affirms without equivocation, that “Equality includes the full and equal enjoyment of all rights and fundamental freedoms.” Article 27 read with Article 2 [Kenya’s human rights and international law obligations], Article 10(2)(b) [equality, dignity, non-discrimination, human rights], Article 19 [democracy], and Article 20 [requiring courts to adopt interpretation that favours basic rights] make it clear that any form of discrimination is suspect and is prima facie prohibited by the 2010 Constitution. Article 28 of the Constitution provides that “Every person has inherent dignity and the right to have that dignity respected and protected.”
The article doesn’t say “some people” but “every person.” “Every person” includes LGBTI persons. The clincher on the unconstitutionality of Sections 162 and 165 of the Penal Code is Article 20(3)(b) of the Constitution which requires courts to “adopt the legal interpretation that most favours the enforcement of a right or fundamental freedom” when applying the Bill of Rights. This isn’t a constitutional suggestion – it’s an ironclad fiat by the country’s highest law. Every lawyer worth her salt knows when a right is contested, courts must take the most liberal interpretation so they don’t deny the right. Kenyan courts have a historic opportunity to strike down Sections 162 and 165 of the Penal Code that criminalise same sex relations. Senior Counsel Paul Muite – one of Kenya’s foremost lawyers, democracy champion, and human rights icon par excellence – represents the National Gay and Lesbian Human Rights Commission that seeks the nullification of these archaic colonial laws. Mr Muite’s leadership on decriminalisation of homosexuality is a clear signal to Kenyans that sexual orientation must be interpreted as a fundamental human right. Recently, the courts showed a proclivity for challenging these outmoded laws and passé views. In 2015, High Court Justices Isaac Lenaola, Mumbi Ngugi, and George Odunga ordered the NGO Coordination Board to register a gay lobby.
The anti-gay views perpetrated by Mutua and ex-AG Muigai will soon be consigned to the dustbin of history. Wanuri Kahiu, the director of Rafiki, is a Kenyan hero. Last month, Kenya’s CEO Uhuru Kenyatta made regrettable and unacceptable comments on CNN. He should preach inclusion, not exclusion. To be gay is as natural, African, and human as is to be heterosexual, pan-sexual, bisexual, and transgender. Mutua can ban Rafiki but he can’t ban Internet. That’s where Kenyans will watch it.
First Published by the Standard