Reviewing anti-sodomy laws in Kenya through an inclusive interpretation of article 45(2) of the constitution

Abstract

The research problematises the interpretation of Article 45(2) of the Constitution which only recognises marriage between the opposite sex as the stumbling block to decriminalise anti-sodomy laws. It uses doctrinal and qualitative methodology to explore inclusive interpretative approaches within the transformative constitutionalism and queer theoretical framework to augment decriminalisation of anti-sodomy laws. It makes three-pronged findings. First, the existing judicial approaches that cite Article 45(2) of the Constitution to affirm anti-sodomy laws are premised on the colonial and majoritarian heteronormative constructs. Secondly, the approaches deviate from various inclusive interpretative approaches developed within transformative constitutionalism and queer theoretical frameworks as espoused on international, regional and national jurisprudence that has decriminalised ant-sodomy laws. Finally, the research tested the nine inclusive interpretative approaches against Article 45(2) of the Constitution with positive results in reviewing the anti-sodomy laws. It thus recommended that courts embrace decoloniality, draw lessons from comparative jurisprudence and inject a dose of judicial activism to augment inclusive interpretative approaches to decriminalise anti-sodomy laws.