|Dean Makau Mutua, SUNY Distinguished Professor at the State University of New York at Buffalo Law School.|
"Let me state the bottom line up-front – [Kenya's] Constitution protects gay rights. Period – plain and simple." So writes Makau Mutua, Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School.
This is both a statement of fact and law. But the Constitution goes even further. It does not prohibit same-sex marriages.As any average first year law student knows, a liberty or freedom that is not prohibited is permitted. But more is at stake.
Are we going to be ruled by fear and hatred, or love? I have said it before, and will do so yet again. Kenya is not a theocracy.
The country is not, and cannot be, governed by religious law. Nor can antiquated cultural norms and tyrannical beliefs imprison us.
Homophobia – the irrational, unscientific, and primitive fear of gays and lesbians – is the vilest of hatreds.
It’s illogical and untenable. Homophobia lies in the same gutter with all the other hatreds, including racism, misogyny, religious bigotry, and tribalism. It’s the oppression of the most vulnerable members of our society.
No progressive person can be a homophobe. Just like no progressive person can hate women because of their gender.
Homophobic heterosexuals need to relax a little and see the humanity in their homosexual compatriots.
Why do I think the Constitution protects gay rights and permits same-sex marriages? I am going to offer you a cold legal analysis of the Constitution devoid of advocacy or politics.
You can take my legal advice to the bank. Perhaps there is no more important clause in any modern Constitution than the “equal protection clause”. This is the overriding provision that is anchored in the anti-discrimination and equality norms.
Without the equal protection clause a constitution would be worthless to protect human rights.
Human rights pivot on – and are made possible by – the legal fiction of equality. Take that away and we all become animals in a jungle. This is the “civilising” core of the modern state.
The universal modern constitution protects a large array of identities in its equal protection clause.
This includes traditional categories like religion, race, ethnicity, colour, social origin, belief, language, conscience, culture, and sex.
But constitutional and international human rights law also protects newer and emerging categories of vulnerability.
These include pregnancy, disability, dress, marital status, and sexual orientation. That’s right – sexual orientation...¨ please read it all, HERE
· Thanks to Dean Makau Mutua
· Thanks to Buffalo Law School
· Thanks to SUNY Distinguised Professor
· Thanks to State University of New York
· Thanks to African Activist, sidebar
· Thanks to Amplifying Africa's Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Voices