Preface: A Presidential Visit
In 2015, United States president Barack Obama paid a state visit to Kenya's president Uhuru Kenyatta, ushering in a politico-cultural moment, one of many in recent years, that brought the issue of homosexuality in Kenya into the limelight both in the national and global public spheres. The visit created tremendous anxiety and controversy about gay rights debates in unprecedented ways, both in Kenya and across the African continent.Footnote 1 Even before Obama set foot in Africa, Kenyan political leaders and religious groups opposed to gay rights warned him to keep off the controversial topic. Obama's highly anticipated visit came shortly after the United States Supreme Court ruled that same-sex marriage was a constitutional right. The ruling irked many in Africa and elsewhere who did not support gay marriage and who hoped that President Obama would not speak about it in his visit. The Obama administration's increased funding of gay rights groups abroad and creation of the position of special envoy for the human rights of lesbian, gay, bisexual, transgender, and intersex (collectively, LGBTI) people were moves that irked African leaders who were not accepting of gay rights.Footnote 2
A lawmaker from the ruling Jubilee Party, Irungu Kangata, advised President Obama against mentioning gay rights.Footnote 3 Similarly, Charles Kanjama, an advocate of the High Court of Kenya, chair of the Kenyan Christian Professional Forum, and a popular social, political, and legal analyst in the Kenyan media, organized a protest against Obama's visit.Footnote 4 One little-known Kenyan political party, the Republican Liberty Party, even seized the occasion of the Obama visit as an opportunity to get free publicity by organizing a nude protest at Nairobi's Uhuru Park to show President Obama the physiological differences between males and females.Footnote 5 Most of these protesting groups perpetuated the narrative that the African gay rights groups receive funds from the United States and European nations in order to impose gay rights and strange cultural practices on Africans. The imposition of sanctions on African countries that do not accept homosexuality has been met with disdain and resistance and has served to harden popular sentiments that fuel homophobia. In contrast, the executive director of the National Gay and Lesbian Human Rights Commission in Kenya explained that sanctions caused widespread repercussions against gay groups and individuals across the African continent.Footnote 6
During the visit, President Obama and President Kenyatta publicly, but civilly, differed on the issue of gay rights. While Obama urged respect of all human rights, including gay rights, Kenyatta responded by arguing that the issue of gay rights was a “non-issue” and not on the agenda.Footnote 7 In a televised news conference at Nairobi's State House, Obama called upon Kenya and other African governments to set an example by banning state discrimination against gays and lesbians, saying, “[W]hen you start treating people differently—not because of any harm they are doing to anybody, but because they're different, that's the path where freedom begins to erode and bad things happen.”Footnote 8 Kenyatta, a staunch Catholic and opponent of gay rights, responded that his priorities were improving health care, education, and entrepreneurship, arguing, “We need to speak frankly about some of these issues. Kenyans and Americans share ideals such as democracy, entrepreneurship and family values . . . We must admit that there are things we don't share, that our culture, our societies don't accept. There are some things that are not part of our religion or culture and there are some things we cannot impose on people that they don't like. It is very difficult for us to be able to impose on people that which they themselves do not accept.”Footnote 9
Interrogating Recent Sexuality Debates in Kenya
The meeting of presidents Obama and Kenyatta and the controversy over homosexuality that emerged is a useful departure point for understanding recent debates over sexuality in Kenya, and in Africa more broadly, particularly at the intersection of law and religion. It is significant that Kenyatta cited African culture and religion as the reason many Africans are not accepting of homosexuality. The subject of sexual orientation, broadly conceptualized, is extremely contested in Africa, because of the deeply ingrained social, cultural, religious, and political norms and values prevalent on the continent. As a report from the organization Human Rights Watch put it, “‘Culture’—a supposedly monolithic realm of civilizational values—becomes the zone where political rhetoric and religious intolerance combine. Sexual or gender nonconformity is painted as ‘un-African,’ its agents symbolically—and actually—expelled from the community. The appeal to culture brings violence in its wake.”Footnote 10
In Kenya, the sexuality debates have a pronounced religious as well as cultural foundation, as the majority of religious organizations are violently opposed to homosexuality. Among mainline churches, the Anglican Church of Kenya and the larger Anglican Communion in Africa have long opposed sexual minorities in both church and society.Footnote 11 Pentecostal and charismatic churches in Kenya have been even more hostile, not just to homosexuality, but to sexual and other minority groups. Kenyan Pentecostal and charismatic churches, in fact, more than other religious groups, have long perpetuated homophobia, and they have contributed to growing intolerance of members of the LGBTI community. Muslim organizations in Kenya are also opposed to homosexuality. In the mind of most religious people, homosexuality is not just a sexual preference, it is a lifestyle. Homosexuality is often associated with witchcraft, evil, demonic spirits, non-belief, or more general opposition to cultural norms. Religious clergy in Kenya and elsewhere in Africa have described LGBT people as “abominations before the Lord,” “sinners and perverts” who are only comparable to “dogs” or are “worse than terrorists” among many other such descriptions. The religious opposition to homosexuality in Kenya, particularly the especially strong opposition by Pentecostal and charismatic churches, raises questions about the role of religion in shaping ideologies and regulating sexual citizenship.Footnote 12
In this article, I examine the role of religion and politics in shaping public debates, discourses, and policies in Kenya, as well as public perceptions of same-sex relationships and the rights of LGBTI people. I focus on how national discourses intertwine with religion, politics, and the law to create a dangerous mix of religious and politically inspired homophobia that puts sexual minorities at risk. I examine particularly the roles of Pentecostal clergy during and after the promulgation of the 2010 Constitution of Kenya, as well as the more recent and controversial 2019 High Court of Kenya ruling that upheld existing antihomosexuality laws and refused to decriminalize same-sex relationships in Kenya. I also examine the role of conservative clergy, such as David Owuor of the Ministry of Repentance and Holiness, and how his rhetoric and that of Kenyan politicians continues to influence public policy and public perceptions of homosexuality and sexual citizenship, more broadly.
The analysis in this article is based on a variety of resources, including recent academic literature on sexuality in Africa, along with a wide array of national and international media and social media resources on sexuality debates in Kenya. This article examines legal, constitutional, and human rights debates, especially during the five-year constitutional review process preceding the national referendum on the 2010 Constitution and after the 2019 High Court ruling that failed to decriminalize homosexuality in Kenya. It further analyzes religious debates manifest in sermons, religious commentaries, and other resources. The article also includes social analysis of these sexuality discourses in interviews with religious communities where I have been carrying out ethnographic research on Pentecostals and sexual citizenship in Kenya for some time.Footnote 13
Overall, I employ a sociologically descriptive, but normatively critical, analysis of homosexuality as a contested subject in the Kenyan public sphere in a bid to understand how debates on sexual orientation and the concept of sexual citizenship more broadly are understood, constructed, deconstructed, and contested in a socially conservative and heavily religious space. My particular focus is on how Pentecostal clergy and politicians have perpetuated homophobia throughout sub-Saharan Africa. Pentecostals, more than other groups in Africa, have used state power to enforce social and cultural norms around sexuality—co-opting African politicians, even as the politicians use Pentecostal clergy to prop up their own authority.Footnote 14
My argument is based on the premise that Kenyan politics cannot be understood in isolation from religion, particularly the role of Pentecostal Christianity in public life, governance, and public policy. Many of these churches and their clergy have moved into the public sphere with the intention to influence not just politics but also public policy. This movement is not surprising, given that religion has for a long time played important roles in Kenyan politics.Footnote 15 Many scholarly observers have characterized the relationship between politicians and clergy in Kenya as one in which each group seeks to court and co-opt the other for respectability and legitimacy.Footnote 16 At the same time, religion frames public discourses on a number of public issues, including public morality, identities, and sexual citizenship. My interest is in the dominant role that religion plays, not only in shaping debates and discourses around homosexuality and same-sex relationships, but also in inspiring and fueling homophobia. I argue that the language and rhetoric of politicians and clergy concretely shape not just political and public discourses, but also public policy and public opinion in respect of social and moral issues. Specifically, my interest is on the role that Pentecostal Christianity plays in shaping public debates and policy on homosexuality and LGBTI rights.
The Role of Religion in Shaping Homophobia and the Politicization of Homosexuality and LGBTI Rights
It should be acknowledged from the outset that in the African context of African sexuality debates, there are inherent complexities and contestations with respect to terminology. As Adriaan van Klinken and Ezra Chitando have pointed out, in the recent past, “Western . . . concepts of homosexuality, LGBTI identities and queer politics have been introduced to African contexts, and . . . have been adopted by local sexual minority communities and activists.”Footnote 17 I use the terms gay, lesbian, and homosexuality because they are the terms that a majority of Kenyans use to describe homosexuality and same-sex relationships. I also use the acronym LGBTI to cover the full range of sexual identities at issue.
Issues of same-sex relationships and LGBTI rights have become the subject of significant public and political controversy in many African countries.Footnote 18 Scholars have linked the politicization of same-sex relationships to the rise of Pentecostal and charismatic forms of Christianity in Africa. In many parts of contemporary Africa, there has been a resurgence of neo-Pentecostal and charismatic Christianity in the public sphere that has led to a sort of Pentecostalization of governance and public life in which Pentecostal and charismatic mores have infiltrated into the public sphere.Footnote 19 In fact, many studies directly link this resurgence of neo-Pentecostalism to increased public and political mobilization against LGBTI rights and relationships. There is both sufficient data and anecdotal evidence to support this claim.
For example, according to Ezra Chitando and Adriaan van Klinken, “religion is part and parcel of the anti-homosexuality language that is voiced, and policies that are initiated, by political leaders and other public figures.”Footnote 20 This claim is not far-fetched, given that the emergence of antihomosexuality politics in Africa has been explained in reference to religion. As Adriaan van Klinken aptly points out, given the dominance of Christianity in many African countries in which homophobia seems on the rise, religion has been seen as fueling the repression of African LGBTI people. Van Klinken shows how Ugandan Evangelicals actively campaigned in favor the Anti-Homosexuality Bill. Further, he argues that Nigerian Catholics and Pentecostal clergy enthusiastically welcomed the Same Sex Marriage (Prohibition) Act of 2013.Footnote 21 In much the same way, Kenyan Pentecostal and mainline clergy and their followers held celebrations after the High Court of Kenya's 2019 ruling that refused to decriminalize homosexuality in Kenya.Footnote 22
In Kenya, opposition to LGBT rights is often associated with religion, particularly Christian mainline, evangelical, and Pentecostal churches. In the Kenyan context, for example, various religious denominations have formed powerful lobbies and church bodies that push their agenda. Some of these include the Evangelical Alliance of Kenya, the Kenyan Christian Church Forum, and the powerful Catholic Justice and Peace Commission, which have all been very vocal on LGBTI rights, abortion rights, and sex education in primary schools. These powerful lobbies, as well as individual clergy, such as David Owuor, have sought to influence public policy on issues such as homosexuality and same-sex relationships, as well sexuality and sexual citizenship, more generally. These lobbies, as I discuss below, sought to influence both the passage of the 2010 Constitution and the 2019 High Court of Kenya ruling on the decriminalization of homosexuality. Others include the 2019 UN Conference on Population and Development (known as ICPD+25) held in Nairobi and the ongoing debates and contestation around the Reproductive Health Bill (2019), which religious leaders have vehemently fought because it allows abortion.Footnote 23
The religious lobbies have also aligned with powerful politicians, such as the current deputy president, William Ruto, a self-proclaimed “born again” Christian and a huge funder of Christian churches and clergy, who has on several occasions publicly condemned homosexuality.Footnote 24 In 2015, Ruto stated publicly in a Nairobi church: “The Republic of Kenya is a republic that worships God. We have no room for gays and those others!”Footnote 25 Ruto has heavily courted religious leaders in his personal quest for respectability and legitimacy and to clean up his image in a country where he is seen as a very corrupt, abrasive, and divisive figure. Besides funding church lobbies and clergy from various Christian denominations, Ruto heavily appropriates religious rhetoric and language to fight gay rights. Like many other Kenyan politicians, Ruto seeks to align not just with religious leaders and powerful lobbies, but with the Christian majority in a country where nearly 85 percent of the citizens identify as Christian.Footnote 26
Indeed, while Kenya is essentially a secular state, it is an open secret that Christianity is the de facto state religion. Christianity shapes public discourses around social and political issues but more recently, it is shaping debates on homosexuality and same-sex relations, gender issues such as reproductive health, and sex education. There is significant evidence suggesting that the emergence of Pentecostalism in Kenya's public sphere has played a critical role in fueling homophobia as well as the politicization and weaponization of same-sex relations and LGBTI rights in Kenya. At the same time, religion, in all its manifestations, has been an important aspect of identity and social practice for Africans generally and Kenyans in particular. This is hardly surprising in a country where religion and politics often intertwine in many ways. There is also a growing influence of Pentecostal clergy, not just in the public sphere, but also in the making of public policy. As Asonzeh Ukah has aptly observed of the Nigerian context, the resurgence of Pentecostal and charismatic Christianity has inspired homophobia in Nigeria.Footnote 27 Ukah argues that politicians have attempted to channel religious zeal and moral strengthen into governance to achieve legitimacy. Consequently, religious groups constantly jostle for political patronage and power to manipulate government structures in influencing policy-making procedures.
It is evident in Kenya that politicians and clergy patronize each other for respectability, legitimacy, and access to state resources in order to influence public policy. Similarly, there has been a proliferation of church lobbies and clergy who play critical roles in the framing of social, moral, legal, and policy issues. This is notable for a number of reasons. First, there is the increasing role of Pentecostal clergy in politics and law, as was witnessed in Kenya in both the debates on the 2010 Constitution and the 2019 High Court ruling on the petition to decriminalize homosexuality. In 2019, Christian and Muslim clergy engaged in religious mobilization and contestations over sexual and reproductive health rights and choices in Kenya, with a special focus on debates and contestations around the Reproductive Health Bill (2019) during the ICPD+25.Footnote 28 In connection with each of these law and policy debates, religious leaders led mobilizations over a wide range of issues and platforms in ways that engendered significant tensions and contestations around women's reproductive health rights, sexual citizenship, and gender justice. Since then, these leaders have continued to oppose laws and policies that touch on women's reproductive health rights and sexual citizenship, arguing that they allow for abortion and homosexuality.
During these mobilizations, clergy from different denominations and religious traditions, with Pentecostals being the most vocal, vehemently opposed policies and laws in a bid to control and regulate public morality. This is hardly surprising given that Pentecostals especially have been engaged in a quest for a national moral regeneration and reformation, in which Kenya is cast by leading Pentecostal clergy as a Christian nation, a God-fearing nation, or, in the words of African religion scholar Gregory Deacon, “a nation born again.”Footnote 29 Others have cast Kenya as a springboard for revival in Africa and one guided by Christian morals, despite Kenya being one of Africa's most corrupt countries.Footnote 30 Christian clergy such as David Owuor have endeavored to image Kenya as a theocracy, despite the fact that Kenya is a secular state. In the recent past, Kenya has witnessed the emergence of powerful prophets, or what Asonzeh Ukah calls “prophetic politics,” in which the prophet plays critical roles in the framing of social, political, policy, and moral issues.Footnote 31 To this end, Owuor has imaged himself as spiritual prophet of the country, tasked with policing the nation's morality.Footnote 32 Increasingly, he dictates not just his followers’ morals, but also attempts to project this into the national sphere, dictating women's dress and intimate lives, along with discourses around homosexuality. Increasingly, politicians use and mirror this rhetoric and religious language to weaponize public discourse around issues of homosexuality and same sex relationships, thereby whipping citizens’ emotions around these rights.
Clergy such as Owuor seek to control state resources for respectability, power, and influence so they can manage and control public discourses around morality. Owuor has emerged as a sort of spiritual president who is policing the country's morality. But it is not just clergy such as Owuor who engage in the project of moral reformation. Increasingly, “born again” policy makers and leaders, such as Ezekiel Mutua, the CEO of the Kenya Film Classification Board, weaponize this morality to shape and influence the Kenyan art scene. Using Pentecostal language and idioms around morality, Mutua has banned many secular films and music because they are against national morals or because they corrupt national morality, earning him the nickname Kenya's “moral policeman.”Footnote 33 Thus, religion not only shapes public, private, social, and political discourses on homosexuality, morality, and sexual citizenship, but it has also been a big mobilizing factor against LGBTI rights. This has contributed to recent politicization of homosexuality in Kenya and in other African countries.
In Kenya, debates on sexual orientation have assumed center stage at several points in recent years, but particularly before and after the promulgation of the new Constitution of Kenya in 2010. These debates have been fueled by religious clergy and politicians who want to align themselves with religious organizations for respectability and legitimation by seeking to influence the nation's legal norms around sexuality. During national referendums in 2005 and 2010, united under the auspices of the National Council of Churches of Kenya and the Evangelical Alliance of Kenya, Christian churches opposed the passage of what eventually became the 2010 Constitution because, among other reasons, it allowed for gay rights. Others hailed Kenya's 2010 Constitution as liberal because it safeguarded the human rights and dignity of all, including gay rights. Consequently, LGBTI rights issues gained recognition in national debates, with many LGBTI people coming out in the open to declare their sexual orientation and to demand respect.
In recent decades, gays and lesbians have attracted tremendous debates and discourses in religious and political circles across sub-Saharan Africa. They have also been the subject of both legal and religious controversies in scores of African countries, including Kenya, Uganda, Namibia, Zimbabwe, Zambia, and Nigeria.Footnote 34 The 2019 petition to decriminalize homosexuality before Kenyan courts and the Pentecostal Christians preaching and teaching in response have not only generated increased homophobia in Kenya's public and religious spaces but also inspired a kind of violent militarism against gays and lesbians in Kenya. Pentecostal clergy and influential followers in public life have sought to control and police morality and sexuality. Recent scholarship points to two recent developments, alongside legal shifts, as the drivers of debate: the increased politicization of homosexuality leading to increased criminalization of homosexuality in a number of African countries and the unprecedented growth of Pentecostal and charismatic Christianity in Africa and elsewhere.Footnote 35
All these developments have inspired increased violent homophobia, religious and political intolerance, and militant ideologies toward LGBTI persons and their activism in ways that have affected their sexual citizenship. In what follows, I examine the roles of religion, politics, and the law in shaping ideologies that seek to regulate homosexuality with a special focus on Kenyan politics, Pentecostal Christianity, and the law. I argue that these have become the central public and political concerns and have inspired not just homophobia, but also violent discourses that are being reproduced in specific social, cultural, and political contexts. In essence and in practice, religious and political leaders have used debates over homosexuality and the law to mask real issues such as corruption, human rights violation, and the politics of marginalization, exclusion, and inequality—especially of women, children, and sexual minorities.
Homosexuality in African Law and Politics
In recent decades, a number of African countries have banned and criminalized homosexuality: it is now punishable with harsh prison sentences in scores of countries across the African continent. In countries such as Uganda, Zambia, Malawi, Cameroon, Nigeria, and Kenya,Footnote 36 homosexuality has been a prominent source of social and moral anxieties, along with new laws that enact homophobia and intolerance. Except for the Constitution of the Republic of South Africa, 1996, which forbids discrimination on the basis of sexual orientation, most sub-Saharan African nations criminalize same-sex relationships, even though some studies have shown that the practice of homosexuality or same sex-relationships has a long history on the continent.Footnote 37 In fact, recent data suggests that out of the forty-eight African countries, thirty-eight criminalize homosexuality.Footnote 38 In several countries, such as Uganda,Footnote 39 Nigeria,Footnote 40 Malawi,Footnote 41 and Kenya,Footnote 42 LGBTI people have been threatened with stricter laws, including recommendations of the death penalty by some legislators. In Kenya, Uganda, Namibia, Nigeria, Zimbabwe, and Zambia, courts have criminalized same-sex relationships through antihomosexuality legislation.
On February 24, 2014, Uganda's president Yoweri Museveni signed into law the contentious Anti-Homosexuality Act, which had been passed in December 2013 by the Ugandan parliament, making homosexuality punishable by life imprisonment.Footnote 43 The bill included punishment of up to fourteen years of imprisonment for anyone who enters into a same-sex relationships and ten years imprisonment for any organizations or people who support gay rights, and for individuals who display same-sex affection in public. The proposed bill had been opposed both locally and internationally for nearly four years before its passage.Footnote 44 Other African countries have imposed harsh penalties for persons found engaging in homosexual activity. The death penalty is imposed for homosexual sex in Sudan, Somalia, Mauritania, and the twelve northern sharia law states of Nigeria.Footnote 45 Life sentences in prison and harsh sentences are prescribed by penal laws in Tanzania, Uganda, and Sierra Leone.Footnote 46 Nigeria, a deeply religious and conservative society that considers homosexuality a deviation and an abnormality, has also outlawed same-sex relationships.Footnote 47
Homophobia remains entrenched and contested across the continent, fueled by both the politicization and religionization of homosexuality in Africa, especially through the law. Even in countries like South Africa that do not have anti-sodomy laws, sexual minorities still remain vulnerable. In South Africa, for example, lesbians are still subjected to so-called “corrective rape” and other forms of violence as reported by Human Rights Watch in a 2011 report.Footnote 48 The existence of such laws, behavior, and rhetoric provides further legitimacy for the denial of human rights of sexual minorities. More importantly, it continues to perpetuate and inspire homophobia that could potentially endanger the lives of gays and lesbians who already suffer tremendous discriminations and stigma. According to a Pew Research Center survey that, since 2002, has periodically tracked global attitudes toward homosexuality, large portions of the public in African nations—at times, as many as nine in ten people—have been among the least accepting of homosexuality. In 2019, the most recent iteration of the survey, 91 percent of respondents in Nigeria and 83 percent in Kenya said that homosexuality should not be accepted (compare to the global median of 38 percent identifying with this attitude.Footnote 49 Similarly, according to Amnesty International,Footnote 50 across sub-Saharan Africa, homophobic attacks and harassment are becoming ever more visible. There is also evidence that homophobia in Africa is largely inspired by both religious and political rhetoric.
The laws and political rhetoric serve as a tacit justification for further discrimination, harassment, stigmatization, marginalization, exclusion, hate speech, and the societal rejection of sexual minorities. Religiously inspired homophobia finds legitimation in political rhetoric and antihomosexuality laws. Anti-gay remarks by African leaders, often with support from religious leaders and the wider public, continues to fuel violent homophobia across the continent. Such remarks also perpetuate discrimination against LGBTI individuals and groups, who frequently face arrests, assault, violence, and even death. The promulgation and the enforcement of such laws in Kenya and elsewhere, coupled with the public pronouncements of political and religious leaders make it hard for the public to accept homosexual orientation. Since Uganda's passage of the Anti-Homosexuality Act, which was proposed in Parliament in 2009 and finally passed and signed by President Museveni in 2014, a number of gays and lesbians have been killed or imprisoned, while many have sought asylum in other African countries, such as South Africa and Kenya, and in Europe.Footnote 51 Indeed, there have been significant numbers of Ugandan gay and lesbian refugees in Kenya as a result of these bills, even as the issue of homosexuality has been politicized in Kenya.Footnote 52
The Politicization of Homosexuality in Kenya
Since the 1990s, political leaders in Africa who support laws criminalizing homosexuality and same-sex relationships appear to have discovered the political advantages of promoting homophobia. In Kenya, Namibia, Uganda, Nigeria, Zimbabwe, and Zambia, political leaders have condemned gays and lesbians in extremely strong terms that have been mirrored by an equally homophobic general citizenry. According to comparative constitutional law scholar Seth Muchuman Wekesa, politicians have also harshly criticized gays and lesbian lifestyles and conduct, deeming them to be un-African, unnatural, foreign, immoral, an abomination, and sinful. In some African countries, for example, “political leaders target sexual orientation issues to distract attention from their overall human rights records, often marked by rampant corruption, discrimination and violence against women, corruption and lack of media freedom.”Footnote 53
Politicians across a number of countries have also called for the arrests, attacks, deportation, imprisonment, and total elimination of sexual minority groups, a move that has led to attacks and forced migration of gays in Zimbabwe, Uganda, Namibia, and Mauritania. A few examples suffice. Ugandan president Museveni has called homosexuals “disgusting” and homosexuality “an abnormality” caused by either random breeding or the need to make money.Footnote 54 In a series of interviews with CNN, President Museveni argued that lesbians chose female partners because of sexual starvation and the failure to marry a man. Of the debate over homosexuality, Museveni mused, “The question at the core of the debate on homosexuality is what do we do with an abnormal person? Do we kill him/her? Do we imprison him/her? Or we do contain him/her?”Footnote 55 He further argued, “Even with legislation, they will simply go underground and continue practising homosexuality or lesbianism for mercenary reasons.”Footnote 56 “You cannot call an abnormality an alternative orientation. It could be that western societies on account of random breeding have generated many abnormal people,” Museveni added.Footnote 57 It is “disgusting behavior,” he has repeatedly intoned.Footnote 58
Employing similar rhetoric, the late Robert Mugabe, who was president of Zimbabwe for thirty-eight years, “devoted whole speeches to denouncing homosexuals as worse than ‘dogs and pigs.’”Footnote 59 He also exhorted members of his party, the ruling Zimbabwe African National Union–Patriotic Front, to tie up homosexuals and bring them to the police.Footnote 60 During Zimbabwe's international book fair in August 1995, President Mugabe also mused “I find it extremely outrageous and repugnant to my conscience that such immoral and repulsive organizations like those of homosexuals who offend both against the laws of nature and the morals of religious beliefs espoused by our society should have any advocates in our midst and even elsewhere in the world.”Footnote 61 In Gambia, former president Yayha Jammeh was quoted in 2008 as having said that homosexuals are like venom and must be fought like malaria-causing mosquitoes.Footnote 62 He also “vowed to cut off the heads of homosexuals.”Footnote 63
In Kenya, former president Daniel Arap Moi “condemned homosexuality as something against Christianity and African culture.”Footnote 64 Similarly, speaking at a rally in Nairobi during the year of the new constitution, then prime minister Raila Odinga, said, “The Kenyan constitution on homosexuality was very clear that men or women found engaging in homosexuality will not be spared. . . . If we find a man engaging in homosexuality or a woman in lesbianism, we will arrest them and put them in jail.”Footnote 65 He later retracted these statements after local and international pressure from individuals and human rights groups. Kenya's current deputy president, William Ruto, was reported by media to have said, “The Republic of Kenya is a republic that worships God. We have no room for gays and those others.”Footnote 66 In 2013, Ruto, the self-proclaimed “born again Christian,” was indicted by the International Criminal Court for crimes against humanity in connection with the violence that followed the 2007 elections, and he has been implicated in several major corruption scandals in Kenya.Footnote 67 The deputy president could have used such anti-LGBTI rhetoric to distract from both the massive corruption allegations facing him and the crimes against humanity of which he was accused before the International Criminal Court (for which he was later indicted). But he has also often sought to align himself with the Christian conservative majority both for respectability and legitimacy especially through hefty monetary donations to churches across the country.Footnote 68
In the legislative branch, Aden Duale, the majority leader of the National Assembly of Kenya said in response to parliamentary debates on a ministerial report on the subject of sexual orientation that homosexuality is “as serious as terrorism,” and that the country needs to address the issue in the same way that it does Al-Shabaab terrorists.Footnote 69 During a particularly emotive debate on the subject of homosexuality in the Kenyan parliament, Duale argued that Kenya's new constitution and penal code were sufficient in addressing the issue of homosexuality in the country. The debates in parliament were a reaction to a ministerial statement on non-enforcement of anti-gay laws in Kenya that indicated that the Kenya police had prosecuted 595 cases of homosexuality across the country between 2010 and 2014.Footnote 70 Kenyan human rights lawyer Eric Gitari argues that an independent due diligence review of this report found gross errors and conflation of homosexuality with bestiality and defilement charges.Footnote 71 Gitari suggests the conflation was either deliberate or meant to increase social anxieties around homosexuality. It could also be due to errors caused by poor record keeping by the Kenyan police, whose documentation to date remains largely manual.
From these examples, it is clear that conversations around homosexuality and same-sex relationships become “more difficult when homosexuality is politicised with religious doctrines” whose nature hardly allows for pragmatic conversations and deliberations which are necessary for any democratic process.Footnote 72 As Asonzeh Ukah aptly points out in the Nigerian context, political leaders in many African countries often use explicitly religious arguments against homosexuality, denouncing it as an un-African, un-biblical, and un-Christian, among many other negative characterizations.Footnote 73 Researchers and social justice activists have argued that “the political capital invested by the Kenyan state on homophobia is a tactic to distract the public from pressing economic issues, such as rampant corruption.”Footnote 74 Such political rhetoric, Gitari points out, has been found to thrive in countries with weak social and political institutions, poverty, inequality, unemployment amongst youth, and generally restrictive civic spaces.Footnote 75 And there is evidence that such political remarks, as well as antihomosexuality laws, have not just encouraged violence against gay and lesbian people, but have also further fueled homophobia in many parts of the African continent. Such rhetoric and laws have had severe and direct consequences for the rights of sexual minorities in Africa, who have recently faced increased rejection, threats, frequent harassment by police and members of the public, imprisonment, even murder in countries like Uganda.
Religion, Homophobic Politics, and the 2010 Kenyan Constitution
If the homophobic rhetoric of the politicians is disturbing, then the role of clergy from both Muslim and Christian denominations is even more alarming. Many Christian and Muslim leaders have condemned same-sex relationships and conduct in the strongest words possible. Many have also rejected calls to respect the human rights of gay and lesbians in the country. Many view sexual orientation as un-natural, un-Christian/Muslim, un-African, and an abomination before the Lord. Their claims have not only supported the continued criminalization of homosexuality in the country, but also continue to perpetuate and inspire homophobia. In the run-up to the referendum on the 2010 Constitution, a majority of clergy from mainline, evangelical, Pentecostal, and charismatic churches vehemently opposed passage because it allowed for the legalization of homosexuality and abortion, among other contentious practices.Footnote 76
Christian mainline churches were led by Canon Reverend Peter Karanja, head of the Protestant National Council of Churches of Kenya, while the Catholic Church was led by Archbishop Cardinal John Njue, head of the Roman Catholic Church in Kenya. The Pentecostal, charismatic, and evangelical churches were led by Bishop Margaret Wanjiru of Jesus is Alive Ministries, Bishop Mark Kariuki, the general overseer of Deliverance Churches of Kenya, and the then chair of the Evangelical Alliance of Kenya, an umbrella body representing Pentecostal and charismatic churches. All these religious organizations and their clergy spearheaded debates to oppose the passage of the constitution, because it allowed for homosexuality. They all argued that the constitution did not meet religious, moral, and economic justice and concerns of religious groups.Footnote 77 Kenya adopted the Constitution of Kenya 2010 in August 2010 after a contested referendum. The Constitution of Kenya 2010 has an elaborate bill of rights that guarantees every citizens rights, justice, dignity, equality, and nondiscrimination. While it does not expressly allow for same-sex relationships, it guarantees protection for minorities and marginalized groups. By contrast, the colonial penal code criminalizes consensual same-sex acts.Footnote 78
A section of Kenyan Muslims was represented by clergy from the Council of Imams and Preachers of Kenya. In their churches and mosques, these clerics undertook civic education. They also mounted serious campaigns through televised religious sermons, radio talks and calls, church crusades, rallies, church publications, newspapers, and press releases in the media and other public spaces. In all these spaces and forums, spiritual leaders gave reasons why the constitution should not be adopted and promulgated.Footnote 79
Pentecostal clergy were particularly troubled by clauses in the constitution that appeared to allow for the legalization of homosexuality, which they deemed to be foreign, un-Christian, and an abomination before the Lord, an unacceptable sexual lifestyle, and a threat to family, marriage, and reproduction. Even without critical political thoughts, they fought hard to sway their followers to reject the constitution. Bishop Wanjiru, then an elected member of parliament for the Nairobi constituency of Starehe and the assistant minister for housing and shelter, positioned herself alongside Pentecostal clergy to campaign against the passage of the new plebiscite. With the help of the Evangelical Fellowship of Kenya, they put up a unified front.Footnote 80 These Pentecostal clergy felt particularly threatened by the new constitution's emphasis on the bill of rights, particularly individual and civil rights, freedom of speech, and reproductive health rights, particularly its permissive provisions on abortion and pornography and its prohibition of discrimination based on gender and sexual orientations. Many clergy scored both political and spiritual capital out of this opposition.Footnote 81 Wanjiru emerged as the face of Pentecostal opposition to the constitution reform process, a move that made her politically popular and vocal.Footnote 82
The politicization was not, however, peculiar to Kenyan Pentecostals.Footnote 83 Anthony Balcomb cites the example of post-apartheid South Africa, where “many evangelicals condemn[ed] the constitution's emphasis on individual rights and civil liberties when it comes to freedom of speech and choice, especially its pro-choice position on abortion, the forbidding of discrimination based on gender and sexual orientation, and its tolerance of pornography.”Footnote 84 Balcomb suggests that the perceived threat to their freedom brought about by the new constitutional dispensation in South Africa may have propelled Pentecostals into active politics with a new and combative zeal. Anecdotal data suggests that Christian and political opposition to the new constitution was backed by America's conservative religious right.Footnote 85 Christian opposition to the new constitution in Kenya and support for the antihomosexuality bill in Uganda have also been linked to the American evangelical right, in a way that has given rise to a fundamentalist view of human sexualities among Pentecostals.Footnote 86 American dollars were also linked to Christian opposition to the 2010 constitution.Footnote 87 Yet, behind the anti-gay crusade in African countries lurks the powerful American evangelical lobby out to promote Christian values and traditional family life in Africa. Pentecostal and evangelical movements are burgeoning in Africa, Kenya included. Many groups have financial support from North American evangelicals. For example, many US-funded programs promoting sexual abstinence until marriage have “channel[ed] money to homophobic groups, while contributing to crippling silence around the sexualities of people who legally cannot marry the partners of their choice.”Footnote 88
According to Adriaan van Klinken, the rise of antihomosexuality politics in Africa is often explained with reference to religion, specifically African Pentecostalism.Footnote 89 He argues that religion is a major factor in fueling homophobia in Africa, and that the Bible and the Christian faith specifically have become sites of increased struggle. In scores of churches across the country and on televised church sermons, leading Pentecostal clergy aligned to the Evangelical Alliance of Kenya and led by the sermons of Bishops Wanjiru and Kariuki have organized teachings and bible study groups focused on the subject of homosexuality. Many of the sermons and utterances by clergy that have labeled homosexuals sinners and an abomination before the Lord have also blamed them for insurmountable challenges that most African countries face, ranging from climate change, to environmental issues, to death and disease, such as HIV/AIDS. Pentecostal groups have held crusades and undertaken civic education in their individual churches.
Clergy from these churches have sought to influence public policy, working alongside conservative Christian politicians, such as William Ruto, to campaign against the new constitution. One of the most interesting contradictions that emerged during the 2010 referendum was the ecumenical spirit exhibited by Kenyan Christian churches that are otherwise normally at sea when it comes to interfaith relations and ecumenical initiatives. A coalition of Christian clergy formed the Kenya Christian Leaders Constitutional Forum and the Kenya Church, representing all those who opposed the passage of the new constitution. Clergy also mounted public rallies, guised as “mega prayer rallies,” urging all Christians to reject the constitution because of the inclusion of clauses that allowed for homosexuality, and other contentious issues including abortion, and the existence of Islamic courts, also known as Kadhi Courts.Footnote 90
In a large crusade event at Uhuru Park in Nairobi, attended by hundreds of Christians and some legislators, the Kenya Christian Leaders Constitutional Forum officially launched the NO campaign against the new constitution, which was symbolized by the color red, signifying danger. According to historian Daniel Branch,Footnote 91 the men and women of cloth spearheaded and stood alongside politicians at the head of the NO campaign. On several occasions, the Kenya Christian Leaders Constitutional Forum threatened the government to mobilize their members against the 2010 national referendum, if it dared to include the contentious issues in the draft constitution. They used resources and appropriated mass media technologies, including newspaper advertisements, radio and television announcements, press releases, posters, and many other means to warn Christians against voting for a draft that they claimed was poisonous and detrimental to the health of the nation. A paid press advertisement, signed by the National Council of Churches of Kenya (Anglican Church of Kenya, Methodist Church of Kenya, Friends Church, and the Evangelical Alliance of Kenya) challenged the government on these issues.Footnote 92 Various clergy from varied denominations also mounted civic education programs in their respective churches.Footnote 93 Kenyan Pentecostal leaders spearheaded national campaigns and public debates to criminalize homosexuality during constitutional debates. In their numerous statements, sermons, television appearances, and interviews, they offered various arguments as to why the constitutional should not be adopted.Footnote 94
Their framing of homosexuality was harsh and alarming, just like the politicians’ utterances discussed above. Even without a critical political theology, Pentecostals aligned with politicians—and vice versa—for respectability and legitimation. Both groups suggested that homosexuality would negatively affect the family institution and reproduction in a bid to enforce social and cultural norms they believe families and communities can no longer uphold.
By framing homosexuality debates and discourses in terms of their supposed effects on marriage and family in this way, the clergy sought not only to construct the moral selves and moral subjectivities of their people but also to define marriage as a union between man and woman as the only ideal model of intimate relationships. In this way, religious leaders attempted to influence and regulate public morality.Footnote 95 Interestingly, Christian clergy have rarely raised issues about the explosion of single motherhood and the high rates of divorce in the country.Footnote 96 Instead, Christian clergy have appropriated notions of devils, demons, sin, death, and abomination to mobilize popular sentiments and emotions against homosexuality. The hardness of these positions and views has stifled more pragmatic and reasoned debates about homosexuality and same-sex relationships in Africa.
According to Adriaan Van Klinken, there is enough evidence to support that religion, particularly African Pentecostalism, is a major factor in fueling homophobia and a key obstacle in future prospects.Footnote 97 Pentecostal teachings, beliefs, and mobilizations against homosexuality have continued to inspire violent homophobia. It is therefore not surprising that Kenyan Christians, especially Pentecostals, welcomed and celebrated the criminalization of homosexuality in Kenya. The Roman Catholic Church and the Protestant churches, including the Anglican and Presbyterian churches, were equally vehemently opposed to the passage of the new constitution. The Anglican Church in Kenya (and across Africa), has long been in strong opposition to homosexuality both in church and society, as seen in the larger crisis facing the Anglican Church worldwide. All these churches aligned themselves with Deputy President Ruto to oppose the passage of the 2010 Constitution. Despite strong opposition from a section of politicians allied with Ruto and with religious clergy and their organizations, an overwhelming 67 percent of Kenyans voted for the new constitution, suggesting that many had different concerns from those of the clergy and politicians.
Post-2020 Constitution Supreme Court Appointment Controversies
Christian churches' opposition to the new constitution propelled them into the public sphere, where they began to influence public policy and police sexual citizenship. For example, the new constitution demanded public vetting of constitutional office holders. Religious leaders and the organizations they represented, still smarting from the overwhelming approval of the 2010 constitution, wanted to influence the appointment of Kenya's Chief Justice, the deputy chief justice, and other judicial officers. Yet discourses around the law and homosexuality continued even after the constitution was promulgated and operationalized, although they remained increasingly emotive even as religious clergy sought to influence laws and public policy. This was demonstrated in the public vetting and hiring of Kenya's first chief Justice and his deputy under the new constitution.
In June 2011, Dr. Willy Mutunga, an advocate of the High Court of Kenya was nominated as the first Chief Justice of the Supreme Court of Kenya under the newly promulgated constitution. Mutunga, a progressive legal scholar, human rights defender, and social justice activist with a long history of advocacy for democracy and liberal reform in the country was shortlisted for the position. Under the 2010 Constitution and its Bill of Rights, it became a requirement to publicly vet all candidates occupying constitutional offices. Mutunga had a storied career as a human rights lawyer and academic, with impressive credentials, a record of personal integrity, and a record of fighting for the enlargement of Kenya's democratic space that earned him a jail term during Daniel Arap Moi's regime.Footnote 98 Mutunga's public vetting attracted tremendous attention because of the vetting panel's focus on Mutunga's personal sexual orientation and his support for human rights and gay rights, particularly in light of a stud earring that Mutunga wore.
Despite the many important issues and challenges facing the judiciary upon passage of the new constitution, the vetting panel focused on Mutunga's ear stud and publicly asked him on live television if he was gay.Footnote 99 Mutunga replied that he was not gay but supported human rights, including sexual minority rights. The panelists further asked him to explain his marital status. Mutunga had divorced his wife but was still single during the vetting process, and this also became a controversial issue. Further controversy swirled around his work as a senior project manager with the Ford Foundation, a US-based international philanthropy that promotes human rights and democracy. The vetting panel, many of whom were politicians, were suspicious that Mutunga was behind the gay rights organizations that had come out to demand their rights before and after the promulgation of the new constitution. It is also worth noting that Mutunga was a Christian who later converted to Islam.
Progressives and the LGBTI community welcomed the appointment of Mutunga, but Christian leaders fought bitterly and tried unsuccessfully to prevent both his nomination and subsequent appointment. Canon Karanja, leading the Protestant National Council of Churches of Kenya, and Bishop Kairruiki, leading the Evangelical Alliance of Kenya, both vehemently opposed Mutunga's nomination and suggested that he was too liberal on issues such as homosexuality, divorce, abortion, and other issues to be Chief Justice in a predominantly Christian nation.Footnote 100 The basis of much of the Christian leaders’ opposition and resistance to Mutunga's appointment was his public defense of LGBTI groups during the course of his work at the Ford Foundation, where he penned, under the pseudonym “Cabral Pinto,” several articles in defense of gay rights that the churches considered an attempt to normalize and “Africanize” homosexuality.Footnote 101 Mutunga's ear stud also turned the spotlight on his sexuality and spirituality. William Ruto, then minister and parliamentarian, echoed a section of Christian churches, warning, “we cannot have a C[hief] J[ustice] who spo[r]ts studs on his ears and claims he uses them to communicate with unseen spirits.”Footnote 102 Mutunga had explained that the earring was a source of ancestral inspiration for him and did not relate to his sexuality and declared, “There is no way I can remove this earring even if I become the chief justice! If am told I must remove it to get the job of CJ, I will say keep your job.”Footnote 103
The nominee for deputy chief justice, Nancy Baraza, who was a doctoral candidate researching homosexuality in Kenya, similarly was the focus of significant controversy and debate about her sexual orientation and marital status. Baraza was asked during the public vetting to indicate her sexual orientation and to explain why she chose to focus on homosexuality as her dissertation topic. She vehemently denied allegations made by the vetting committee that she was a lesbian. She explained that she was straight, a divorced mother of three children whom she had raised singlehandedly. As it had with Mutunga, Baraza's marital status also created controversy, which was hardly surprising in a society that frowns upon single women. The topic of her doctoral research on homosexuality created quite a stir during the vetting exercise. Her critics, mainly a section of Christian clergy, argued that she did not represent family values because she was divorced. Christian leaders promote heterosexuality and monogamy as the ideal for Christian marital relationship. Many also questioned why she would research homosexuality if she was not a lesbian. These debates over judicial appointments gave greater visibility to the subject of sexual orientation in Kenya.
Following these debates over the new constitution and judicial appointments and after the two high-profile public vettings of Mutunga and Baraza, many members of the LGBTI community came out to openly declare their sexual orientation. The debates, as Sylvia Tamale has written of another context, “forced the issue of nonconforming sexualities ‘out of the closet’” and into mainstream political and religious discourse.”Footnote 104 It also “provided the space within which the issues could be aired and LGBTI groups could articulate not only their fears, but also their claims to equal citizenship.”Footnote 105 Others were fighting to ensure that the question was an “intrinsic part of the democratic struggle” in the country and “not peripheral to it.”Footnote 106 Since then, Kenyans have had more open—but also highly contentious—discourse about homosexuality in the public sphere. Human rights activists, academics, and media personalities have written on the subject of sexual orientation, urging the public to change its perceptions. US-based Kenyan legal scholar Makau wa Mutua has written about gay rights in Kenya's leading newspapers in a bid to engender pragmatic debates.Footnote 107
Yet, even as Pentecostals work to influence public policies and regulate people's sexual lives, it is not lost on many that Kenyan clergy are hardly bothered by other social problems, such as the explosion of single motherhood in the country, drug and substance abuse, poverty, youth unemployment, and increased gender and sexual violence—this last category includes female genital mutilation, rape, child marriage, forced marriages, and teen pregnancy—all of which are rampant in Kenya. Despite Kenya being 83 percent Christian, the country is still one of the most corrupt and unequal countries in the world.Footnote 108 It is also increasingly ethnically divided, with a large majority of citizens feeling marginalized in all areas of public life. It is a country in which Pentecostal churches are found every five kilometers in urban areas and where prayers are part and parcel of the social and political culture. But that fact does not translate to any tangible social and moral reform.Footnote 109
Nonetheless, Pentecostal preachers vilify LGBTI groups from their pulpits, blaming homosexuality for the ills affecting the Kenyan society. Until 2000, controversies about homosexuality in Africa received little attention. Homosexuality was not a major subject of discussion in Kenya's religious and public spheres, even though there had been talk about its presence in prisons and boarding schools. Pentecostal churches were mostly silent about homosexuality, choosing to focus more on the prosperity gospel, faith healing, and similar themes and teachings. Paul Gifford, a scholar of African religion and politics, points out that homosexuality was not a burning issue for most Kenyans.Footnote 110 The centrality of homosexuality in public debates in African societies, particularly in Christian circles over the last twenty-five years, has much to do with spread of the HIV/AIDS pandemic, in which Christian moralism began to assume center stage, but it also has to do with more general contestations over sexual citizenship and the role of religion in disciplining peoples’ sexualities.Footnote 111
Pentecostal Apocalyptism, Hellfire, and Contestations over Sexual Citizenship: The Case of David Owuor
In the wake of increased influence of religion in the public sphere, and particularly Pentecostal Christianity as a public force, there has been a move toward a notion of sexual citizenship in which clergy seek to have power and influence over people's personal and sexual lives. This can be seen as a move by spiritual leaders seeking to influence governance and public policy, including the law. The tension between civil liberties and rights, as fronted by civil society activists, and religious values, as fronted by religious leaders, has come under increased scrutiny. In invoking religious authority and values, Kenyan clergy have sought to police and control people's sexualities and ultimately their very citizenship. Yet new notions of sexuality and rights continue to be contested and reconfigured. As Ukah has argued, “religious opposition to same-sex relationships touches on the nature of different types and modes of citizenships in modern African states. Many religious groups associate human sexuality—primarily—with procreation and oppose same-sex unions as the proper context to produce children.”Footnote 112
Kenyan Pentecostal clergy have a strong social presence in the Kenyan public sphere. Pentecostal clergy, such as the self-proclaimed prophet David Owuor of the Ministry of Repentance and Holiness, have used both their church platforms, political, spiritual power, and public profiles to image themselves as the moral voices of the nation whose mission is to create a holy kingdom of God on earth in preparation for the much-anticipated Rapture. Owuor, whose teachings focus on sex and morality, frames issues affecting the country in sexual and apocalyptic terms. He has claimed that the problems with Kenya—including poor governance, corruption, politics of exclusion and marginalization, and sexual and gender-based violence—are all linked to the concept of sexual sin. Consequently, Owuor has recently emerged as a strong opponent of homosexuality and same-sex relationships, frequently condemning homosexuality in strong terms. Owuor, whose pet subject is immorality from trafficking in sexual sin, had this to say about homosexuality in a series of sermons he preached on sexual sin and its gravity:
Open gay homosexuality is now reigning in the church, including on global christian television where gays homosexuals and lesbians cannot be rebuked, but shockingly now publicly share views expressing their positions on the bible. As though this were not bad enough, the present-day church has taken this to a new height by openly and publicly anointing open gay and homosexuals as pastors and bishops. To add salt onto injury, there is a raging debate that is currently threatening to split the church of Christ onto whether this abomination of homosexuality should be included in worship practices or thrown out of church.
While all this is going on, the rest of the other christians are busy attending movies of immorality driven by hollywood.Footnote 113
Owuor, who has in the past fifteen years emerged as the spiritual president of the country and a moral policeman, attempts to discipline, police, and legislate public morality, specifically that of women's bodies and sexualities, in his church and in the country by instituting a “holy” and decent dress code for his women followers.Footnote 114 As a highly influential Pentecostal leader in Kenya, Owuor's movement has morphed into a large grass root movement while his social and political power has equally grown.
While Owuor was not part of the group that opposed the 2010 Constitution, he later emerged as an outspoken preacher against homosexuality and other sexual sins, which he terms an abomination before God. He has also framed it in eschatological and apocalyptic language in which God's wrath will be manifested in the death and complete annihilation of sinners. According to him, rampant sexual sins not just in Kenya, but in the world as a whole, will lead to death and usher in the kingdom of God. He articulates his controversial teachings through hundreds of sermons, many of which have been uploaded to YouTube, and through church magazines, crusades and other large spiritual gatherings, and television and radio sermons. His popular perception as one of the mightiest prophets of the Lord adds not just to his mystique and social and political power, but also to his spiritual power. He is largely viewed as the defender of the nation's morality and one who will usher in the kingdom of God.
As many commentators have rightly observed, religion and politics are part and parcel of the debates and controversies surrounding homosexuality in Africa. Pentecostals such as Owuor not only castigate homosexuals, but also frame acceptance and tolerance of homosexuality as the reason why the country is grappling with myriads of challenges—ostensibly because God is so angry with Kenyans for embracing queer sexual habits. Such teachings and conservative positions have not only fueled homophobia but have also whipped up emotions and make it impossible for societies to accept homosexuality or have divergent views on the subject. The wider religious and social opposition to homosexuality inevitably has an impact on the law and assessments of constitutional rights.Footnote 115
Decriminalization of Homosexuality in Kenya: Two Steps Forward, One Step Back
The national referendum that produced the 2010 Constitution was widely recognized as a progressive plebiscite that guaranteed the human rights and freedom of all Kenyans. Even so, criminalization of homosexuality in Kenya continued to be heavily criticized by human rights groups, which saw the ongoing threats to LGBTI people as a huge setback to civil rights. Adriaan van Klinken argues that the key components of the penal code violated rights enshrined in the Constitution of Kenya, 2010, including the rights to privacy, freedom of expression, human dignity, health, and protection from discrimination.Footnote 116 Members of the LGBTI community complained of frequent police harassment and discrimination while seeking medical care. Civil society organizations in Kenya have continuously documented human rights violations based on sexual orientation and gender identity. In 2010, for example, the Kenya Human Rights Commission found that LGBTI persons in Kenya were routinely harassed by police, evicted by landlords, fired from jobs, denied access to health care, and cut off from families, religious groups, and social support.Footnote 117 Since 2012, the National Gay and Lesbian Human Rights Commission has also documented violations against LGBTI persons, which include “corrective rape,” physical assaults, arbitrary arrests, detentions, extortion, and blackmail, among many others.Footnote 118
In 2015, following a petition made in 2013, in the case of Eric Gitari v. Non-Governmental Organisations Co-Ordination Board, the High Court of Kenya at Nairobi, had allowed an LGBTI group to register their organization under the Nongovernmental Organizations Coordination Act.Footnote 119 In that case, the National Gay and Lesbian Human Rights Commission, led by Eric Gitari, was thrice denied registration because its name was deemed “unacceptable” and because the Kenyan penal code “criminalizes gay and lesbian liaisons.”Footnote 120 The Non-Governmental Organizations Co-ordination Board,Footnote 121 a government agency that regulates and monitors civil society organizations, issued the denials on the basis that it would be “furthering criminality and immoral affairs.”Footnote 122 The High Court found that the denial violated Article 36 of the Kenyan Constitution guaranteeing freedom of association and that “conceptions of morality cannot serve as a justification to limit fundamental rights,”Footnote 123 ruling that transgender organizations be allowed to register as nongovernmental organizations, which essentially also allowed not just the registration of transgender groups, but also the change of gender markers on official documents issued by government to transgender persons.Footnote 124 This was a significant step forward for LGBT rights under Kenyan law.
A second advance came on March 22, 2018, when the Court of Appeal at Mombasa ruled that forced anal examinations on people accused of same-sex relations was unconstitutional.Footnote 125 Forced anal examination of people accused of homosexual activity was found to violate their right to privacy and dignity.Footnote 126 In describing the effects of the case, Gitari stated, ““My biggest concern was for the two young men; they will live with this for the rest of their lives. But it was progress nonetheless. It means that no other magistrate, no police officer, no government hospital can engage in anal testing to prove that someone is a homosexual. The practice has no value at all, as the court has said, in proving any crime or offense related to homosexuality.”Footnote 127 Indeed, Gitari reflected, “This case has given people confidence, to see what's possible . . . we have a local precedent now, and it's being supported. The court was very deliberate in using the African Charter on Human and Peoples’ Rights to speak about it. In this context, people are so keen to use knowledge that is constructed by institutions within the African continent, to push against all these injustices against homosexuals, to create litigation and to claim justice.”Footnote 128
The LGBTI victories would be short lived. On May 24, 2019, the High Court of Kenya at Nairobi rejected a petition calling for the decriminalization of homosexuality in Kenya.Footnote 129 The decision came at a time when there was speculation around the world that Kenya might legalize homosexuality.Footnote 130 The 2019 case followed two petitions that had been filed in 2016 by three LGBTI organizations, namely, the National Gay and Lesbian Human Rights Commission, the Gay and Lesbian Coalition of Kenya and the Nyanza, Rift Valley and Western Kenya Network.Footnote 131 The LGBTI groups sought to repeal Sections 162 and 165Footnote 132 of the colonial penal code, which criminalized sexual acts between persons of the same gender. The petitioners had asked the court to declare sections of the colonial penal code unconstitutional. Kenya's penal code, which dates to British rule, criminalizes sodomy. Under this law, a person who has carnal knowledge of any person against “the order of nature or permits a male person to have carnal knowledge of him or her against nature” commits a felony punishable on conviction by a fourteen-year prison term. To commit an unnatural offense is also punishable on conviction by a seven-year prison term.Footnote 133 The three-judge bench ruled that the impugned provisions of the penal code are not vague in describing the offense.Footnote 134 The judges argued that the petitioners had “failed to establish that the impugned provisions are discriminatory.” Further, they argued that there was no evidence that the petitioners were discriminated as they sought healthcare.Footnote 135 The ruling followed petitions filed in 2016 by gay organizations that had asked the court to declare sections of the penal code unconstitutional.
The rejection of the decriminalization petition in Kenya in 2019 remains a huge setback to the LGBTI community, not just in Kenya, but across the African continent. Religious clergy and their followers welcomed the ruling as a victory for the country.
According to Gitari, “discourses about gay and lesbian issues have often been located also within Kenya's legal systems where there have sometimes been arbitrary interpretation and application of criminal rule under political bait, an instrument to regenerate political power both domestically and internationally.”Footnote 136 In Gitari's assessment, this is made possible when “legal arguments intersect with religious doctrines and social anxieties over reproduction, marriage and the future.”Footnote 137 My own interviews with ordinary Kenyans suggest that many Kenyans are homophobic, even though there are many younger progressive Kenyans who support gay rights.Footnote 138 A section of Kenyans have also pushed back against clergy like David Owuor and born-again moral policemen like Ezekiel Mutua on social media and other platforms.Footnote 139
Conclusions
The debates and discourses on the subject of homosexuality in Kenya have not only brought to the fore issues of same-sex relationships, but also brought to light the role of religion, politics, and culture in perpetuating homophobia and intolerance of LGBTI people. Given the institutionalized discrimination against homosexuals in various African countries, a debate focusing on the role of politics and religion is vital to understanding the factors behind increased homophobia in a majority of African countries.
Pentecostal Christianity, in particular, seeks to uphold specific interpretations of the Bible and apply that to public morality in a way that seeks to enforce sexual citizenship. This has created serious contestations and pushback by citizens who resent Pentecostal mapping of their teachings onto the public. Further, as reflected in constitutional debates and in ways that have seeped into recent court decisions, Pentecostal teachings and positions both create social anxieties and moral panic and inspire hostility and homophobia that endangers the lives of sexual minority groups. The Pentecostal community's need to police sexual citizenship in Kenya and Africa more generally points to the central roles that both religion and politics play in these debates and the effects that these can have on law.
Through their responses and attempts to influence legal norms, religious and political leaders, have not only promoted the nonacceptance of same-sex relationships in Africa, but also ensured that sexuality and embodiment have become a cultural and religious battleground in which the same clergy and politicians seek to frame homosexuality as un-African, unacceptable, and a threat to African moral and cultural sensibilities and sensitivities and to African moral and family values. Consequently, the perception is that homosexuals do not belong in Africa and cannot be entertained, accommodated, tolerated, or even understood. Ultimately, the politicization and religionization of same-sex relationships in Kenya, as elsewhere in Africa, has masked human rights debates, stifled serious academic and pragmatic engagements with important issues around sexual difference and sexual orientation, and fueled negative attitudes toward people with different sexual orientations.
In welcoming the ICPD+25 to Kenya in November 2019, President Uhuru Kenyatta welcomed an international population conference to Nairobi, but he also cautioned that Kenya “will not accept practices that are at conflict with our cultures.” The comment was understood to be a reference to proposals for legal abortion and LGBTI rights that were to be on the agenda. Kenyatta continued by observing, “We will welcome the visitors to Nairobi. We will be there and we will listen. But will be firm in rejecting what we do not agree with.” Indeed, Kenyatta stated, “We have a stand . . . But on things that do not conform with our cultures and religion, we will firmly reject.”Footnote 140 This is the current state of struggles for sexual rights at the intersection of law and religion in Kenya.