A constitutional approach to the decriminalisation of homosexuality in Africa : a comparison of Kenya South Africa and Uganda

Abstract

Most African states have criminalised homosexual acts between consenting adults on the basis that it amounts to a threat to the traditional heterosexual family. They believe that sexual orientation is a matter of personal choice and view the act as unnatural and un-African. Religious groups oppose same-sex sexual acts due to sodomy being viewed as a sin which should be prohibited by the law. Kenya and Uganda have criminalised same-sex sexual acts in their Penal Codes. This thesis identifies that the existence of sodomy laws in Kenya and Uganda have served as a justification for the discrimination, harassment, violence and marginalisation of gays and lesbians. Despite the existence of a robust Bill of Rights in the Kenyan and Uganda Constitutions, gays and lesbians have not been able to realise and enjoy their rights. This thesis critically examines how the rights to equality, human dignity and privacy guaranteed in the Kenyan and Ugandan Constitutions can be used to construct a constitutional argument for the decriminalisation of same-sex sexual conduct in both countries. South Africa was used to provide a comparative approach to the study as it has decriminalised same-sex sexual acts after the Constitutional Court declared sodomy laws unconstitutional. It also provides for the protection of the rights of gays and lesbians in its Constitution by expressly including sexual orientation on the list of prohibited grounds of discrimination. It could therefore provide some lessons for Kenya and Uganda. This thesis argues that the equality clauses in the Kenyan and Ugandan Constitutions form a strong case for the decriminalisation of same-sex sexual conduct. It is submitted that the equality clause in the Kenyan Constitution adopts an open list approach which could be interpreted in a progressive and creative manner to include sexual orientation as a prohibited ground of discrimination under other status? category. It is also submitted that although the equality clause in the Ugandan Constitution adopts a closed list approach, it has listed sex as a prohibited ground of discrimination. For gays and lesbians to rely on this sex? category, the equality clause would require a progressive and creative interpretation by including and reading sexual orientation? within the sex? category. As regards the right to human dignity, it argues that gays and lesbians are human beings that deserve protection by the law. Humanity is enough reason for homosexuals to be treated like other human beings (heterosexuals) and to be able to benefit from the same rights. Therefore the right to human dignity should be used as a tool for inclusion of their rights. It further argues that the courts are in a better position to play a critical role in the realisation and protection of the rights of gays and lesbians in Kenya and Uganda because they have been mandated to interpret the Constitution. It is submitted that for judges to interpret the constitutional provisions on the rights to equality, human dignity and privacy in a progressive and creative manner, they should embrace the notion of judicial activism. They should interpret the Constitution in a manner that upholds constitutional values such as human dignity and equality and avoid relying on public opinion as a determining factor in resolving constitutional human rights issues, especially with respect to those socially controversial ones such as homosexuality. It concludes that judicial activism should be accompanied by social activism since the views against homosexuality are still heavily embedded in the minds of the majority of Kenyans and Ugandans. This thesis therefore recommends that an expansive public awareness campaigns and sensitisation programs to be developed to promote the idea that gays and lesbians are human beings that deserve not only respect and dignity but also equal rights and treatment.