Natasha Kahungi is JURIST’s Africa Bureau Chief. She files this from Nairobi. 

Many voices are being raised as Kenya braces for the anticipated introduction of an anti-LGBT bill in parliament, creating a cacophony of both support and opposition to the planned legislation. This vibrant outpouring of viewpoints highlights the complexity of this pressing social issue as well as the nation’s diverse ethos.

On one end of the spectrum, supporters of the bill, led by opposition Member of Parliament (MP) Peter Kaluma, stand firm in their convictions. They claim that preserving traditional values and cultural standards is critical and that implementing such legislation is a way to protect the moral fibre of the country. The Family Protection Act, of 2023 seeks to protect and promote the ‘natural’ family as well as heterosexual marriages, and, in tandem with the paramountcy principle enshrined in the constitution, upholds parents’ rights to choose the type of education to be provided to their children, particularly in terms of sexual education. The statute makes same-sex relationships illegal, including oral sex and the use of sex toys on someone of the same gender. The offender will be liable for a conviction of imprisonment for not less than ten years, and in the cases of aggravated homosexuality as outlined in section 5(2) of the bill, shall be convicted to death.

Any supposed marriage or other kind of union between people of the same sex, even if supported by a certificate issued by a foreign body, is also illegal in Kenya. This means that spouses in same-sex ‘marriages’ in Kenya cannot claim spousal rights under both the Marriage Act and the Law of Succession Act. The statute also forbids sex reassignment treatments and prescriptions, as well as coercion of youngsters into undergoing such procedures. We also have section 162 of the Penal Code that impliedly criminalizes homosexual acts under the banner of unnatural offences.

The contentious bill is coming to parliament just weeks after the Supreme Court’s majority verdict allowing the registration of LGBT non-governmental groups. Interestingly enough, the Attorney General vowed to appeal the Supreme Court’s ruling, claiming that the topic was beyond the purview of the courts and required public input. Religious organizations were also outraged by the decision.

The proposal of MP Peter Kaluma’s Family Protection Bill appears to follow a trend of African countries criminalizing LGBT individuals. Uganda just approved one of the strongest anti-LGBT laws in May, amid mounting concerns about the need to protect the family and real African culture. Ghana has also taken measures to reform its anti-LGBT legislation, proposing three-year sentences for LGBT people and a ten-year term for anyone found promoting homosexuality.

On the other hand, several human rights organizations have condemned the bill as an affront to Kenya’s democratic norms. Kenyan Families Coalition, a human rights organization, has petitioned parliament to reject the bill, claiming that it was too unclear on sensitive LGBT topics. The National Gay and Lesbian Human Rights Commission has also stated that the measure will make life unpleasant for the LGBT community, citing an increase in the frequency of attacks on the community. According to Amnesty International Kenya, there has also been an increase in homophobic violence against the community in the Kakuma refugee camp.

Human rights groups have also cited specific instances where the proposed law’s provisions infringe on the rights to privacy, human dignity, freedom of conscience, religion, belief, and opinion, freedom of expression and the press and freedom of association. Proponents of the bill argue that the constraints imposed by the act are acceptable under Article 24 of the Constitution because the state strives to preserve the most fundamental unit of society, the family, and uphold public morals. Notably, the word “public morality” is frequently viewed as a catch-all phrase that authorities may interpret in ways that either assert or misrepresent a specific attitude.

Nonetheless, within this range pro and con, some individuals take a more nuanced approach, sympathizing with both sides of the discussion. These individuals recognize the issue’s cultural intricacies and sensitivity. They advocate for discussion that promotes understanding and courteous communication, intending to bridge the gap between opposing viewpoints.

The unfolding story of Kenya’s anti-LGBT bill serves as a sobering reminder of the complications intrinsic to any society’s quest for advancement. How the country navigates this crossroads will surely influence its identity and future for subsequent generations.