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Source of law to criminalise homosexuality

A custom may be described as a continuing cause of conduct which by the acquiescence or expressed approval of the community observing it has come to be regarded as fixing a rule or a norm of conduct for the members of the community. Customary law therefore means rules established by usage and having the force of law and excludes social and moral customs.One of the tests requires that for a custom to be accepted it must have existed from the time immemorial it must have antiquity.

The Uganda Magistrates Act says:

“Customary civil law means the rules of conduct which govern legal relationships as established by custom and usage and not forming part of the common law nor formally enacted by Parliament.”[1]

Is customary law good law?

“I would say a judge should be very slow to criticize any custom of people. There always is a purpose for the practice of a custom; human beings do not partake for too long in customs which are not beneficial to them. If a judge is required to apply a custom, it is often safe to summon to his assistance one or more competent assessors from the community of the parties to the action before making critical comments on custom.”

Nyaragi, J.A in Sheikh Mustang Hassan vs Nathan Mwangi Kamau Transporters and others.(1998)

Can we use customary law to interpret the bill of rights?

Article 2(4) of the Constitution of Kenya[2] provides that, any law, including customary law, that is inconsistent with the Constitution of Kenya is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. This can be interpreted as recognition of customary law by the constitution.

Further the constitution under Article 159 2 c provides that In exercising judicial authority, the courts and tribunals shall be guided by the following principles including alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted.

Does the constitution represent customary law?

See preamble

Going by the Pure Theory of Law created by Hans Kelsen, Customary law would be the basic norm, order, or rule that forms an underlying basis for a legal system. The theory is based on a need to find a point of origin for all law, on which basic law and the constitution can gain their legitimacy. The constitution of kenya is thus valid as it does not offend the basic norms.

constitution of Kenya article

(1) This Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation.

In Nyali Limited vs A.G^{^[3]} The court while considering whether the royal prerogatives of common law were exercisable in Kenya Lord Denning held that common law is to apply subject to such qualifications as local circumstances render necessary. Similarly in the Virginia Otieno versus Ougo & another {1987} KLR, 371 , H.C, case The Court Of Appeal held that there is no way a person can divest himself of association from the clan of the father if the customs of the clan are patrilineal

Written law to criminalise homosexuality

The Kenyan Penal Code of 1930, as revised in 2006, provides as follows:^[20]

Section 162. Unnatural offenses.

Any person who –

(a) has carnal knowledge of any person against the order of nature; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years:

Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if –

(i) the offence was committed without the consent of the person who was carnally known; or

(ii) the offence was committed with that person’s consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.

Section 163. Attempt to commit unnatural offenses.

Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.

Section 165. Indecent practices between males.

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

Article 24(1) of the Constitution of Kenya provides that, “A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors….”

Article 27 of the Constitution does not use the words sexual orientation and gender identity so the gay rights are not expressly provided

Article 45(2) of the Constitution of Kenya specifically authorizes opposite sex marriage but is silent about same-sex marriage. “Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties” the silence does not imply that the same are permitted

Public opinion on homosexuality

According to the 2007 Pew Global Attitudes Project, 96 percent^[4] of Kenyan residents believe that homosexuality is a way of life that society should not accept, which was the fifth-highest rate of non-acceptance in the 45 countries surveyed.^[5]

The non-governmental Kenya Human Rights Commission published in 2011 the results of a survey it conducted in the LGBTI communities across the country. Among those who came out or were outed to their family members, 89 percent reported that they were disowned.^[6]^{:pages: 24–25} Employees were reported to have been terminated or subjected to hostility, ridicule, humiliation, and discrimination when their sexual orientation or gender identity became known in the workplace.^[6]^{:page: 26}

In June 2011, Kisauni Islamic College principal Sheikh Majid Obeid blamed inflation and drought on people who engage in same-sex acts. Council of Imams and Preachers of Kenya organising secretary Sheikh Mohammed Khalifa said, “We are asking Kenyans to shun businesses owned by such people and further show them open discrimination as a way of stopping the beastly act. They grossly abuse rights of others and should not be accepted among the society”.^[7]

A mob of 100 people led by religious leaders and village elders on 23 February 2012 stormed a meeting of homosexuals at the Likoni CDF Youth Empowerment and Library Centre. Likoni police boss Abagarro Guyo and district officer Moses Ouma then ordered the meeting closed. Sheikh Amir Zani of the Muzadhalfa mosque described the seminar as “illegal, ungodly and unacceptable”. He threatened to “mobilise the community to cane the gays if they organised such a meeting again”. But the Ministry of Youth and Sports district officer, David Ogal, defended the organisers of the seminar and accused residents of misunderstanding their aims.

Having discussed the above homosexuality is not only immoral in the African context but also illegal. If we give them rights to practise immoral acts wont robbers be up forming organisations to have stealing rights?

[1]the Uganda magistrates act cap 16 of the laws of Uganda

[2] The Constitution of Kenya 2010

[3] {1957} 1 All E.R 646, {1956} 1.Q.B

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MY TWO CENTS WORTH ON GAY RIGHTS