How the Supreme Court Has Opened The Door For Legalizing Homosexuality in Kenya.

Earlier in the year in February, the Supreme Court of Kenya declared that the LGBTQ community has a right of association. The Court ruled that article 27 of the Constitution protects sexual minorities as well.
Here is what that article 27(4) of the Constitution actually says.
“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.”
A normal reading and understanding of the word “sex” as it appears in that particular clause, would be that one should not be discriminated against because of their biological sex; which is basically the physical condition of being male or female depending on a person’s sex chromosomes, XX (female) or XY (male).
However, 3 of the 5 Supreme Court Justices decided that the definition and understanding of the word “sex” in article 27(4) should include “sexual orientation”. This is how they explained it in their determination:
“…[t]he use of the word “sex” under Article 27(4) does not connote the act of sex per se but refers to the sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise. Further we find that the word “including” under the same article is not exhaustive, but only illustrative and would also comprise “freedom from discrimination based on a person’s sexual orientation.”
This interpretation of the word “sex” by the Supreme Court Justices clearly adds something that has not been explicitly stated in the Constitution. Justice William Ouko and Justice Mohammed Ibrahim are the two Justices who disagreed with the majority decision. They felt that if Kenyans wanted the issue of sexual “orientation” added to the Constitution, then it would have happened during the drafting of the same back in 2010.
The reason why the dissenting opinion of the two Justices is significant is because Kenya is considered to be a conservative country. About 70 or 80% of the population identify as Christians and another 10% are Muslim. In addition to this, many Kenyans are still very connected to traditions and cultures that are connected to their tribe, many of which are very conservative in nature. The idea of sexual orientation then cannot just be casually introduced into the societal system. A discussion needs to be had and a consensus reached by the people themselves before that can happen.
The Supreme Court was careful to state that they had not declared homosexuality to be legal in Kenya. They said that permitting the right of association would not contravene the sections of the penal code that criminalized gay and lesbian unions and other homosexual acts. However, when the highest Court in the land makes a ruling, there are significant ramifications. By interpreting a constitutional provision in a certain way, the Supreme Court can establish a precedent that will guide the lower courts and other branches of government in future similar cases. This means that a decision by the Supreme Court can influence public policy and even bring about societal change by upholding or striking down laws that affect various aspects of society. In this particular case, it would now be easy for a lawyer to go to court and challenge the legality of the section of the penal code that criminalizes homosexuality. There are groups such as the National Gay and Lesbian Human Rights Commission (NGLHRC) whose sole purpose of existence in Kenya is to do exactly that, so it’s only a matter of time.
As was implied by the dissenting Justices in this Supreme Court ruling, something like this that would bring significant change to the country’s culture should be decided by the people of Kenya. If anyone wishes to bring about such significant changes in the laws of the land, then let them do it through the front door. Let them present their argument to the people and let there be a clear debate and a clear consensus.