The Right to Equality and Non-Discrimination of the LGBT Community. A Comparison Between the United States and Kenya

TABLE OF CONTENTS

CHAPTER ONE INTRODUCTION TO THE STUDY
Background
egal Protection of LGBT rights
Violence and Discrimination against LGBT community
Rationale of the study
Theoretical and conceptual framework
Conclusion
Organization of the study

CHAPTER TWO RELIGIOUS, POLITICAL, CULTURAL VIEWS AND INTERNATIONAL AND REGIONAL FRAMEWORK ON THE LGBT RIGHTS
Introduction
RELIGIOUS, POLITICAL, CULTURAL VIEWS
INTERNATIONAL FRAMEWORK
UNITED NATIONS INTERNATIONAL BILL OF RIGHTS
OTHER TREATIES AND CONVENTIONS
REGIONAL FRAMEWORK
LEGAL PROTECTION ON LGBT RIGHTS
Conclusion

CHAPTER THREE COMPARATIVE STUDY ON THE POSITION OF THE LGBT IN THE UNITED STATES AND KENYA
INTRODUCTION
ROLE OF THE COURTS TO DECRIMINALISE HOMOSEXUALITY IN THE UNITED STATES
ROLE OF THE COURTS DECRIMINALIZING HOMOSEXUALITY IN KENYA
LIMITATION OF RIGHTS
POTENTIAL OF DECRIMINALIZATION UNDER THE CONSTITUTION
CONCLUSION

CHAPTER FOUR CONCLUSIONS AND RECOMMENDATIONS
INTRODUCTION
CONCLUSION
LESSON
RECOMMENDATIONS

BIBLIOGRAPHY
Books and Chapters in books
Journal Articles
Newspapers Articles
Reports/Papers
Encyclopedia
Constitutions
Statutes
Bills
International and Regional instruments
Dissertations/Theses
Case Law

DEDICATION

This dissertation is dedicated to all Lesbians, Gays, Bisexuals and Transgender in Africa and all other Parts that LGBT Rights have been criminalized and have faced discrimination throughout the years.

ACKNOWLEDGEMENT

First and foremost I would like to thank the Almighty God for bringing me this far and giving me the strength to complete this dissertation.

My deepest gratitude goes to my supervisor Ms. Elizabeth Musikali who has guided me through this journey. My dissertation would not have been what it is without your invaluable insight.

I would also like to thank my family especially my grandmother, my aunt Patricia and Uncle Kevin who stood by me and encouraged me through sleepless nights and most importantly it would not have been for my Uncle Anthony Maina who gave me the opportunity to go to law school which has led me right here to this final project, to him I am truly grateful. To my friends: Stacy Samputu, Justin Paul, Noel Amutabi, Christine Arasa, Eva Sein, James Kisia, John Kisigwa, Richard Njogu and Brian Ochieng’ who helped me a lot in finalizing this project within the limited time frame.

LIST OF ACRONYMS AND ABBREVIATIONS

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CHAPTER ONE INTRODUCTION TO THE STUDY

ABSTRACT

This research paper shall be based on desk study. Desk research refers to secondary data or that which can be collected without fieldwork. To most people it suggests published reports and statistics and these are certainly important sources.^[1] This study will look into the International Bill of Rights, the Supreme Law of Kenya, The constitution of Kenya 2010 and other relevant legislative enactments, case law, historical studies, newspaper articles and also at interviews carried out by other researchers.

Background

Human beings are sexual beings throughout their entire lives. Sigmund Freud states that Human Beings are sexual from birth, and sexual expression is a basic human need throughout our lives. Sexual expression is an essential component of healthy human development for individuals of all ages. According to researchers Susan Cochran and Vickie Mays, sexual orientation is a complex concept with multiple measurable and intercorrelated dimensions, including sexual attraction; sexual behavior; sexual fantasies; emotional, social, and lifestyle preferences; and self-identification.^[2] LGBT is an abbreviation that is used to stand for lesbians, gay, bisexual and transgender.^[3] These are a group of people who are considered to be non-heterosexual. Lesbians and gay people are primarily referred to as members who are attracted to the same sex.^[4] A bisexual person is sexually attracted not exclusively to people of one particular gender but attracted to both men and women.^[5] Transgender is a term for people whose gender identity, expression or behavior is different from those typically associated with their assigned sex at birth.^[6]

LGBT Rights all began in the year 1924, where Henry Gerber founded the Society for Human Rights in Chicago. It was the first gay rights organization documented in the United States and it was the site of the first publication for the queer community. However it was disbanded shortly after being founded.^[7] In 1950 the Mattachine Society was formed by activist Harry Hay which was one of the first sustained gay rights groups in the United States. The Society focused on social acceptance and other support for homosexuals.^[8] Throughout the years lesbian rights organizations and other LGBT groups were formed to fight for fundamental rights, freedoms and equality. As a result, very few parts in the United States and other countries around the world began to decriminalize homosexuality by repealing their sodomy laws.^[9]

Through tireless efforts after facing discrimination and marginalization from various sectors such as the government, right activists in the United States were successful in fully legalizing the LGBT community and other western countries began to follow this regime. This can be illustrated in the case of United States v. Windsor the Supreme Court of the United States found the section of the federal Defense of Marriage Act which limited federal marriage recognition to opposite-sex couples to be unconstitutional, ensuring that the federal government was allowed to recognize all legally married same-sex couples.^[10] This case led to the recent landmark case of Obergefell v. Hodges where the United Supreme Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples.^[11] Many scholars have sought to disprove the belief that homosexuality is a decadent, western innovation forced upon colonial Africa by white men, or, alternatively, by Islamic slave-traders, the belief that homosexuality is exogenous to the history of African people.^[12] However, before colonization in Africa, Africans were believed to have practiced homosexuality in their communities.

Legal Protection of LGBT rights

Today, LGBT rights have been recognized in various countries around the world and a growing number of governments around the world are still considering whether to grant legal recognition to the LGBT community. With the exception of South Africa, many countries in Africa, 33 countries have outlawed LGBT rights and further criminalized it. In Kenya, section 162 of the Penal code CAP. 63, Laws of Kenya criminalizes persons involved in gay sex or have any carnal knowledge of any persons involved in unnatural offences and are sentenced to fourteen (14) years of imprisonment.^[13] Section 165 only applies to sexual conduct between men. If someone is found guilty under this law, he can be sentenced to a maximum of 5 years in prison.^[14] Through these laws it has degraded the inherent dignity of individuals by limiting their right of self-expression. However, Eric Gitari, a renowned International lawyer and others have been advocating for LGBT rights since 2010 having made a petition in the High court against Non-governmental organisations.^[15]

In International Human Rights Law, “Human Rights are those fundamental freedoms and entitlements that each person possesses by virtue of nothing more than a status as a human being” (Hofmann and Rowe).^[16] Article 1 of the Universal Declaration of Human Rights dominantly provides that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.^[17] Members of the United Nations reaffirmed that their faith in the promotion of fundamental rights and equality for both men and women to enable better living standards in the society and that included the right against discrimination which still under this declaration it provides that all are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.^[18] Since the adoption of the Universal Declaration of Human Rights in 1948, there have been several international human rights instruments which reflect the provisions brought out in the UDHR. Such International Bill of Rights include the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights and the two Optional Protocols.

The International Convention on Civil and Political Rights for example has been ratified into the laws of Kenya. Article 2 provides that each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. It further goes on to state each State Party to the present Covenant should ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.^[19]

The Constitution being the supreme law of Kenya, it has ratified this law and is now part of the Kenyan domestic law through Article 2 (6) of the Constitution of Kenya, 2010.^[20] It guarantees certain rights to all individuals including the right to life,^[21] equality and freedom from discrimination^[22], human dignity^[23], freedom and security of the person,^[24] privacy^[25], freedom of expression,^[26] freedom of association,^[27] highest attainable standard of health^[28], education,^[29] work and access to justice.^[30] Article 27 of the Constitution of Kenya 2010, specifically provides for equality and freedom from discrimination. The article states that every person is equal before the law and has the right to equal protection and equal benefit of the law and that 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. No person shall be discriminated directly or indirectly by another person.^[31] However, these provisions are not absolute as minority communities such as the LGBT group are still targeted, violated and even shunned in today’s society. However, Kenya being a patriarchal society, the Constitution merely provides for formal equality as compared to substantive equality. Meaning there are various legal barriers that prevent achieving certain goals in this case the LGBT community face challenges of enjoying fundamental rights and freedoms as provided under the constitution. To achieve these rights and freedoms substantive equality has to be incorporated for the benefit of the LGBT community.

Violence and Discrimination against LGBT community

Discriminatory legal systems have reserved most rights for heterosexual’s yet strictly withhold such rights from non-heterosexual people such as marriage, adoption, inheritance, etc. Such legal systems and penal codes make it impossible for LGBT persons to claim the right to protection from violations and discrimination as that would entail a risk of persecution.^[32] De vos strongly argues for legal protection of sexual minorities. He identifies law as a remarkable tool that can be employed in protecting the LGBT community.^[33] However, despite the new Constitution's more progressive stance, not all Kenyans are able to enjoy the rights guaranteed to them under its provisions. In particular, lesbian, gay, bisexual and transgender (LGBT) Kenyans continue to suffer injustices arising out of discrimination, oppression and marginalization. Additionally, they are subjected to police brutality and imprisonment on the basis of their sexual orientation.^[34] Therefore, there is a deliberate failure by the state to protect LGBT persons from discrimination both in policy and legislation which deprives them of their political, cultural, social and economic rights.^[35]

There have been legal barriers which drive LGBT persons underground due to fear of prosecution. Kenya’s colonial history has greatly impacted the ways in which sexual orientation and gender identity are understood today. Colonial powers considered Africans to engage in sexual relations for the sole purpose to reproduce and they believed that homosexuality were far too sophisticated for Africans.^[36] A number of African leaders, including those of Kenya, Uganda, Zimbabwe and Namibia, have been quoted in recent years publicly making homophobic statements likening homosexuality to bestiality with the aim of raising public opprobrium against LGBT individuals.^[37] In equating LGBT Kenyans with criminals, the laws contribute to the overall atmosphere of homophobia throughout the country, which leads to violence against LGBT Kenyans in the first instance.^[38]

Activists have been hoping that the new constitution would pave way for LGBT rights but the minority group still face violence openly by political and religious leaders. In recent years, religious leaders have used the Bible and the Quran to incite violence against LGBT people with devastating effect. In the weeks leading up to Obama's visit, Kenyan politicians took to the airwaves to assert their anti-gay bona fides. Deputy President William Ruto gave a guest sermon in a church to announce that Kenya "had no room" for homosexuality.^[39] In Kenya, in 2012 The National Gay and Lesbian Human Rights Commission (NGLHRC) was founded by legal advocates who were inquisitive about the LGBT community and therefore carried out a study to understand their needs and priority.^[40] From the report ‘Outlawed Amongst Us’ it shows that even though same sex practices have been criminalized the LGBT community are still out fighting for their equal rights that have been deprived and are solely entitled to. Simply, there have been reports on human rights abuse against the LGBT community where they have been routinely violated, subjected to hate speech, shunned by members of their family, harassed by the police, raped by police officers as a way of blackmail or they are also blackmailed to give bribes to avoid imprisonment and even physically tortured^[41], they are held in remand houses beyond the constitutional period without charges being read to them. In cases of medical treatment, LGBT people have poor access to Health Care and lack of comprehensive services as a result are they are afraid of honestly answering medical interviews for fear of being rebuke or arrested.

Additionally, medical professionals breach their code of conduct by breaching doctor-patient confidentiality and reveal their identity to fellow colleagues. Other medical practitioners refuse to offer medical services to the LGBT community and are physically forced to leave.^[42] Moreover, students have been bullied in schools which lowers their self-esteem and are left without any guidance and counselling, thus they have to learn from their peers.^[43] The bullying issue is never redressed. Such students are either punished severely or expelled from learning institutions because of their sexuality. Professionals have been discriminated, stigmatized and subjected to violence because of their sexual orientation and not to mention qualified persons seeking to find jobs are rejected. Also, LGBT enjoy less access to valuable resources and constantly find it difficult to track their hiring process.^[44]

A study by Adisa Teliti reveals that people can face social exclusion from society more importantly the minority group. One of the main features of social exclusion of LGBT people is their invisibility and marginalization, or in more political terms, the lack of recognition of LGBT people as full members of a community and as citizens.^[45] Kenya’s LGBT movement has worked hard to prevent anti-LGBT legislation in the face of regional criminalization efforts stemming from Uganda’s 2009 anti-homosexuality bill. Even as they hold the line to prevent heightened criminalization, activists are determined to pursue openings to decriminalize homosexuality, secure legal protections and affirm the LGBT community access to their economic, social and cultural rights.^[46]

In conclusion, it is clearly seen that the LGBT community face discrimination from all various forms whether political, religious or cultural sectors. Therefore, this research aims to uncover the inequalities the LGBT face. Lastly, in Kenya there is no recognition of transgender persons as the law in Kenya is heterosexist and only recognizes the male and female gender. Following the landmark decision in 2014 to allow Kenyan transgender rights, activist Audrey Mbugua was forced to change her gender on her school records.^[47] Therefore it proves that there is no equality in our society. Therefore, this study will look further into the infringement of rights caused upon the minority group. In addition, this study will delve into the Kenya Human Rights Commission’s Report ‘Outlawed Amongst Us’, other journals and the petition brought to the High court by Eric Gitari by focusing on the challenges that have risen through advocating for LGBT rights.

Rationale of the study

This paper shall seek to discuss if the LGBT community have equal rights as heterosexual beings. It shall also extensively discuss the right to equality and freedom from discrimination of Lesbians, Gay, Bisexual and Transgender.

Consequently, this paper shall focus in depth on the religious, political, social, cultural views in the United States, Kenya and other various countries around the globe.

In addition, this study shall seek to discuss the international and regional framework of LGBT rights in the United States, Kenya and other countries around the world.

Moreover, this study shall analyze the role of the courts both in the United States and Kenya. It shall seek to discuss why such rights are discriminatory and if Kenya should adopt the position as other countries that have passed the laws governing the LGBT community and to ensure the protection of the LGBT community.

Theoretical and conceptual framework

This research shall focus on the positivist school of jurisprudence as opposed to other theories of law. This school of thought sees the law as being the command of a powerful entity which command must be obeyed whether wrong or right. The positivist approach believes that our rights are granted by the government, society or other men and therefore can be taken back by them as well. A government designed with a separation of powers and a Constitution designed to protect individual rights and freedoms. Positive law is the basis for the concept of social justice which attempts to subvert natural law and create artificial equality through regulations or force.^[48] Through analyzing this theory, we are able to observe the events that have occurred concerning the rights and equality of the LGBT community throughout the years. What is referred to as equality? Equality according to Black’s Law Dictionary is the condition of possessing the same rights, privileges, and immunities, and being liable to the same duties.^[49] According to Laski equality means “coherence of ideas”. This means while privileges are distributed among the individual’s justice and reason must be maintained so that no individual can think that he is neglected or is deprived of his due share.^[50] In John Rawl’s theory on Justice as fairness he describes a society of free citizens holding equal basic rights and cooperating within an egalitarian economic system.^[51] Every individual has the right to claim equal liberties with others and when the state authority can ensure this, it will be assumed that justice will no longer be far away. If equality is violated justice will not be achieved. The Greek philosopher, Aristotle and his maxim states that “things that are alike should be treated alike”. Aristotle construed equality as giving equals the same treatment or treating them equally. This means that for Aristotle if differences were recognized and the different groups were discriminated or treated in an unequal manner because of their differences then injustice would not exist.^[52]

[...]

^[1] An Introduction to Research Methodologies, Cap 4, https://www.b2binternational.com/assets/ebooks/mr_guide/04-market-research-ch4.pdf, (accessed April 19 2017).

^[2] S.D Cochran, and M.V Mays, Lifetime Prevalence of Suicide Symptoms and Affective Disorders among Men Reporting Same-Sex Sexual Partners: Results from NHANES III, American Journal of Public Health, Vol. 90, No. 4, 2000, p. 573, http://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.90.4.573, (accessed 8th July 2017).

^[3] S. Mott, LGBT: What Does It Really Mean? , 2013, http://www.huffingtonpost.com/stephanie-mott/lgbt-what-does-it-really-mean_b_3971192.html, (accessed 8th July 2017).

^[4] Together our Voices are Louder, 2013, http://www.stop-homophobia.com/lgbt-terms-and-definitions, (accessed 8th July 2017).

^[5] ‘Bisexual’, English Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/bisexual, (accessed 8th July 2017).

^[6] ‘Transgender’, National Center for Transgender Equality, 2014, http://www.transequality.org/issues/resources/transgender-terminology, (accessed 8th July 2017)

^[7] K. Lucke, a Brief History of the LGBT Rights Movement, 2015, https://www.theodysseyonline.com/lgbt-history, (accessed 8th July 2017).

^[8] CNN, LGBT Rights Milestones Fast Facts, 2017, http://edition.cnn.com/2015/06/19/us/lgbt-rights-milestones-fast-facts/index.html, (accessed 9th July 2017).

^[9] Ibid

^[10] United States v. Winsor, 133 S.Ct. 2675, 2013.

^[11] Obergefell v. Hodges, 135 S. Ct. 2071, 2015.

^[12] KHRC, The Outlawed Amongst Us: A study of the LGBTI Community’s Search for Equality and Non-Discrimination in Kenya, Nairobi, Kenya Human Rights Commission, 2011, p. 4. Available from: NGLHRC, (accessed July 8th 2017).

^[13] Penal Code, Section 162.

^[14] Penal Code, Section 165.

^[15] Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others [2015] eKLR, Petition No.4 of 2013

^[16] J. Mzizi, Simply in Virtue of Being Human, European Court of Human Rights, https://www.scribd.com/document/62730041/Simply-in-Virtue-of-Being-Human, (accessed 17 April 2017).

^[17] Universal Declaration on Human Rights 1948 Article 1.

^[18] Universal Declaration on Human Rights (1948), Article 7.

^[19] International Convention on Civil and Political Rights (1976), Article 2.

^[20] The Constitution of Kenya, 27 August 2010 (Constitution of Kenya), Article 2.

^[21] Ibid, Article 26.

^[22] Ibid, Article 27.

^[23] Ibid, Article 28.

^[24] Ibid, Article 29.

^[25] Ibid, Article 31.

^[26] Ibid, Article 33.

^[27] Ibid, Article 36.

^[28] Ibid, Article 43.

^[29] Ibid, Article 43.

^[30] Ibid, Article 48.

^[31] Ibid, Article 27.

^[32] Sida, Human Rights of Lesbian, Gay, Bisexual and Transgender persons, http://www.globalequality.org/storage/documents/pdf/sida%20dialogue%20paper%20on%20development.pdf, (accessed 3rd August 2017).

^[33] P. De Vos, ‘On The Legal Construction of Gay and Lesbian Identity and South Africa’s Transitional Constitution’, 12 South African Journal On Human Rights, 1996, p.265, http://www.tandfonline.com/doi/pdf/10.1080/02587203.1996.11834908?needAccess=true, (accessed 21 April 2017).

^[34] Courtney E. Finerty, ‘Being Gay in Kenya: The Implications of Kenya’s New Constitution for its Anti-Sodomy Laws’, Cornell International Law Journal: Vol. 45: Iss. 2, Article 4, 2012, p. 432, http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1793&context=cilj, (accessed 21 April 2017).

^[35] Ibid, n12

^[36] S. Tamale (ed.), African Sexualities: A Reader, Cape Town, Pamabazuka Press, 2011, p.12-16.

^[37] W. Muguongo et al., Kenya LGBTI: Landscape Analysis of Political, Economic & Social Conditions, Astraea Lesbian Foundation for Justice, 2015, http://www.astraeafoundation.org/uploads/files/publications/AstraeaUSAID.Kenya.04_11_16.pdf, (accessed 22 April 2017).

^[38] Ibid, n34

^[39] G. Warner, When The U.S. Backs Gay And Lesbian Rights In Africa, Is There A Backlash? , 2016, http://www.npr.org/sections/goatsandsoda/2016/08/30/491818892/when-the-u-s-backs-gay-and-lesbian-rights-in-africa-is-there-a-backlash, (accessed 4th August 2017).

^[40] The National Gay and Lesbian Human Rights Commission, History of NGLHRC, 2015 https://www.nglhrc.com/about-us/#history, (accessed 22 April 2017).

^[41] KHRC, The Outlawed Amongst Us: A study of the LGBTI Community’s Search for Equality and Non-Discrimination in Kenya, Nairobi, Kenya Human Rights Commission, 2011, p. 21-28. Available from: NGLHRC, (accessed April 22 2017).

^[42] G. Alencar et al., Access to health services by lesbian, gay, bisexual, and transgender persons: systematic literature review, BMC International Health and Human Rights, Vol. 16, 2016 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4714514/, (accessed April 17 2017).

^[43] O. Wanzala, Gays Begin in Primary, Devil Worship in High School: Report, Daily Nation, Tuesday June 13, 2017, p.3.

^[44] A. Teliti, ‘Sexual Prejudice and Stigma of LGBT People’, European Scientific Journal, vol.11, No.14 ISSN: 1857 – 7881, 2015, p. 63, http://www.eujournal.org/index.php/esj/article/download/5674/5427, (accessed 23 April 2017).

^[45] Ibid, n44.

^[46] Ibid, n37.

^[47] A. Dubuis, Kenya Could Become the Next Country in Africa to Legalize Homosexuality, 2016, https://news.vice.com/article/kenya-could-become-the-next-country-in-africa-to-legalize-homosexuality, (accessed 4th August 2017).

^[48] Natural Law vs. Positive Law, 2010, https://davegj13.wordpress.com/2010/06/12/natural-law-vs-positive-law/, (accessed April 19 2017).

^[49] ‘Equality’, Law Dictionary: What is Equality? http://thelawdictionary.org/equality/, (accessed April 19 2017).

^[50] Nitisha, Equality: Meaning, Aspects and Theories, http://www.politicalsciencenotes.com/equality/equality-meaning-aspects-and-theories/785, (accessed April 19 2017).

^[51] John Rawls’, Stanford Encyclopedia of Philosophy, 2008, https://plato.stanford.edu/entries/rawls/, (accessed April 19 2017).

^[52] Aristotle. Aristotle in 23 Volumes, Vol. 21, translated by H. Rackham. Cambridge, MA, Harvard University Press; London, William Heinemann Ltd. 1944, (accessed April 19 2017).