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In a judgment delivered last week (EG v Attorney-General), the High Court of Kenya upheld the criminalisation of same-sex relations under the Kenyan Constitution. At issue was the constitutionality of Sections 162 and 165 of the Kenyan Penal Code. Section 162 prohibits having “carnal knowledge of any person against the order of nature.” Section 165 criminalises acts of “gross indecency” between two male persons. In arguments that, by now, have attained a ring of familiarity, these provisions were challenged on the bases that they violated the rights to equality and non-discrimination, privacy and dignity, and health under the Kenyan Constitution, as well as being vague and over-broad.

In criticising the judgment of another country’s court, one must proceed with a degree of circumspection. Every nation’s constitutional jurisprudence is specific and unique, and the assumptions that one brings from a study of one’s own legal system may simply not hold. That said, however, on a reading of the judgment, the arguments advanced before the Kenyan High Court, and the manner in which the Court engaged with them have, by now, attained an almost universalistic cast: they have been litigated across a range of countries, and in supra-national forums, over many decades. It would, therefore, be almost remiss if one didn’t point out the ways in which the Kenyan High Court, with respect, appears to have delivered a seriously flawed judgment.

The Argument from Vagueness

It was argued before the Court that the phrases “carnal knowledge”, “against the order of nature”, and “gross indecency”, were impermissibly vague. This is, of course, a familiar argument, and readers will recall that in Kaushal, the Indian Supreme Court had dodged it entirely by recounting conflicting precedent, and then claiming that the question could be determined on a case-to-case basis. The Kenyan High Court, however, did a little better. Relying on precedent, it defined “carnal knowledge” as “sexual intercourse” (paragraph 270), “against the order of nature” as “anal sex” (paragraph 271), and “gross indecency” as contact between genital organs, or the breast and buttocks. (paragraph 273) Having defined each of these terms, the Court then held the two provisions were specific enough to pass constitutional muster.

That is fair enough in its own right, but notice that, having defined Section 162 in terms of a specific and particular sexual act, the implications of what that meant for the constitutionality of the statute could not, later, be dodged. However, when it came to the constitutional argument, this – as we shall see – was exactly what the Court did.

The Argument from Equality and Non-Discrimination

Article 27 of the Kenyan Constitution guarantees equality before law, and prohibits direct and indirect discrimination on a host of specified grounds, including race, sex, pregnancy, marital status, and so on. While interpreting the provision, the Kenyan High Court borrowed from the ECHR and South African jurisprudence, to (correctly) note that “unfair discrimination” occurs when a law “treats some people as inferior or less deserving of respect than others. It also occurs when a law or conduct perpetuates or does nothing to remedy existing disadvantages and marginalization.” (para 288) However, after stating the position of law, the Court went on to hold in paras 295 and 296 that Sections 162 and 165 did not violate the Constitution, because:

The substance of the Petitioners’ complaint is that the impugned provisions target the LGBTIQ community only. If we understood them correctly, their contestation is that the impugned provisions do not apply against heterosexuals … [O]ur reading of the challenged provisions suggests otherwise. The language of section 162 is clear. It   uses the words “Any person.” A natural and literal construction of these words leaves us with no doubt that the section does not target any particular group of persons.

Readers will recall that this is a very old and very familiar argument, which was also employed by the Supreme Court in Kaushal: the supposed distinction between “acts” and “identities”. According to this argument, anti-sodomy laws only target a specific set of sexual acts (in the present case, as defined by the Kenyan High Court, the act of anal sex), which could – in theory – be committed by heterosexuals or homosexuals. They do not target same-sex relations and, therefore, do not attract equality and non-discrimination provisions.

However, as old as this argument is, its basic flaws have also been pointed out multiple times. For example, as the US Supreme Court pointed out in Lawrence v Texas, when the act that is criminalised “is closely correlated with being homosexual … there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” Likewise, in National Coalition, the South African Constitutional Court noted that “it is not the act of sodomy that is denounced by the law, but the so called sodomite who performs it.” The point, in other words, is that by criminalising a specific set of acts, anti-sodomy laws effectively construct the homosexual identity as legally salient, and go on to persecute it – a point that has, by now, been made in reams of scholarly literature. That point cannot be understood, however, if the statute is examined only on its own terms, and in the absence of the social context within which it is embedded and operates. And indeed, the text of Article 27 of the Kenyan Constitution does require the latter approach: by prohibiting both direct and indirect discrimination, it requires a court to examine the effect of a law (an enquiry that needs to be contextual), and not merely its formal language (which is what the Court limited itself to in the above paragraph).

In fact, when faced with Section 165, even the Court’s formal analysis began to border on the illogical. Section 165, it held, used the term “any male person”, and therefore targeted male persons in general, and not male persons of any particular sexual orientation. The Court seemed to miss the second half the provision, however, which uses the term “with another male person”! Now, when a statute criminalises “acts of gross indecency” only between two male persons, we don’t even need to go into questions of indirect discrimination – on its face, the statute clearly targets gay men.

That said, the Court did go on to consider questions of selective enforcement. After noting petitioners’ affidavits that set out various instances of discrimination and violence, the Court noted that “a party pleading violation of constitutional rights is at the very least expected to give credible evidence of the said violation and that it is not enough to merely plead and particularize a  violation.” In this case, “save for the allegations made in the Petition and the affidavits, no tangible evidence was given to support the allegations.” (paragraph 299)

But this is a bewildering argument. It is in the nature of social discrimination and prejudice that it is experiential: it takes the form of discrimination in access to services, taunts in public and private, physical violence, and so on. The only “tangible evidence” that can be produced in such cases is in the nature of the testimony of those affected by it – all of which was before the Court. And this is also the reason why there exist detailed sociological studies (see here) that discuss the interface between anti-sodomy laws and social norms. It is therefore unclear what kind of evidence the Court would have found satisfactory in this case (it did not specify).

The Argument from Privacy and Dignity

After moving quickly through some other arguments such as the right to health (I have refrained from analysing the Court’s analysis of this, because it appears to require access to the pleadings), the Court came to the final argument: that the provisions violated the rights to privacy and dignity. The Court made two arguments to reject this claim. First, it held that there was no conclusive evidence to support the proposition that homosexuals were “born that way.” (paragraph 393) And secondly, it held that the question of legalising same-sex marriage had been explicitly raised during the drafting of the Kenyan Constitution, and it had been answered in the negative, with Article 45 of the Constitution specifying that “every adult has the right to marry a person of the opposite sex.” According to the Court, allowing same-sex relations would “indirectly open the door for unions among persons of the same sex”, something that would conflict with Article 45. (para 397)

Let us take both arguments in turn. On the first issue, the Court is right that there exists some scholarly debate on the issue of whether sexual orientation is “innate” or whether it is a product of biological and social factors. Where the Court is wrong, however, is on the question of whether that matters at all. As this piece puts the point: “Why should gay rights depend on being born this way?” Indeed, the question of whether sexual orientation is innate or not is irrelevant to a privacy/dignity claim, where one of the core elements is that of decisional autonomy, and, in particular, the right to make intimate choices in freedom and without State coercion. Therefore, wherever upon the innate/choice spectrum sexuality may lie, its position upon that spectrum does not change the fact that it is protected by the constitutional rights to privacy and dignity.

The second argument is even more difficult to parse. Article 45 uses the specific term “marry“, and in the absence of a claim for same-sex marriage, it is difficult to see where the conflict is. The Court attempted to get around this by observing that Section 3(1) of the Marriage Act defined “marriage” as the “voluntary union between of a man and a woman.” For the second time in the judgment, however, the Court appears to have engaged in a spot of selective reading. Section 3(1), in full, reads: “Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.” This means that the Court’s attempts to equate “marriage” and “unions” when it says that legalising same-sex relations would “indirectly open the door for unions among persons of the same sex” is a piece of casuistry: by its very terms, a same-sex union would not amount to a marriage unless it is registered under the Marriage Act; and therefore, there is absolutely no conflict with Article 45 of the Kenyan Constitution.

It is also impossible to ignore the Court’s own shifts in meaning through the judgment: while considering the equality and non-discrimination claim, the Court held that Sections 162 an 165 only criminalised certain “acts”, and not persons. But when it came to the privacy and dignity claims, the Court switched tack, and found a seeming conflict with Article 45 of the Kenyan Constitution on the assumption that what Sections 162 and 165 did do was to outlaw same-sex relations, and not simply anal sex.

Conclusion

Article 27 of the Kenyan Constitution is a striking provision. It outlaws both direct and indirect discrimination. It provides a host of grounds: race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language, or birth. And it uses the word “including” just after “ground”, signifying that the definition is open-ended. This makes it one of the most progressive anti-discrimination provisions in any Constitution, anywhere in the world.

It would seem the easiest and most natural of analytical feats to hold that sexual orientation falls within Article 27. The multiple grounds in connection are united by two things: they are either “personal characteristics”, or the products of personal and intimate choices. And they are united, further, by one overarching theme: they have been the historical and continuing sites of discrimination, used in order to identify and single out groups of people, and then target and attack them. On every conceivable understanding of this provision, therefore, sexual orientation clearly comes within its terms.

Why then did the judgment of the Kenyan High Court come out the way that it did? Reading it, I was in fact struck by the similarities that it had with Kaushal: both judgments are characterised by a similar unwillingness – an unwillingness not to justify or to defend discrimination, but simply to acknowledge that it even exists. This is what explains the fact that in both Koushal and in EG, ultimately, the Court dodged the hard questions by holding that the equality and non-discrimination provisions of the respective Constitutions didn’t even apply, because, after all, the only thing prohibited was a set of acts. The contextual analysis that was required to link these apparent “acts” to the stigmatisation and persecution of sexual minorities was the missing step that the Courts seemed either unwilling – or unable – to take.

But the future of Kaushal perhaps give hope that in Kenya as well, this is an error that shall soon be rectified.