Emergent Momentum For Equality
Emergent Momentum For Equality
Chapter Title: Emergent momentum for equality: LGBT visibility and organising in Kenya
Chapter Author(s): Jane Wothaya Thirikwa
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
11
J. W. Thirikwa (2018) ‘Emergent momentum for equality: LGBT visibility and organising
in Kenya’, in N. Nicol et al. (eds.) Envisioning Global LGBT Human Rights: (Neo)colonialism,
Neoliberalism, Resistance and Hope (London: Human Rights Consortium, Institute of
Commonwealth Studies), pp. 307–21.
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
308 ENVISIONING GLOBAL LGBT HUMAN RIGHTS
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
LGBT VISIBILITY AND ORGANISING IN KENYA 309
(SMUG). However, this was met with hostility. Some delegates heckled Kasha
Jacqueline Nabagasera, a prominent human rights activist from Uganda, who is
also an out lesbian, during her presentation. As well, LGBT community members
suffered a backlash after they were featured in local news coverage. Nevertheless,
the Nairobi WSF opened up spaces for activists in Kenya to speak up more
boldly about homophobia and transphobia. It also strengthened regional LGBT
organising, specifically in the East African and Southern African regions.
With continuing advocacy and emphasis on creating allies within the wider
social justice efforts, the LGBT movement in Kenya is constantly reviewing its
strategies to incorporate a multifaceted advocacy approach that is based on the
intersectionality of social justice struggles. As a result, the multi-tier route to
achieving equality and non-discrimination, spearheaded by GALCK, has since
been adopted. This approach has brought together a network of GALCK’s
partners and stakeholders which focuses on legal and non-legal strategies for
decriminalisation of same-sex conduct between consenting adults. It has also
widened the scope of social justice issues to include other concerns including
health, security, an enabling legal environment and quality citizenship. The
decriminalisation approach emphasises changing the narrative of the movement
from sexuality and identity politics only to quality citizenship. This strategy is
envisioned to link with and inform advocacy on other human rights clusters such
as legal, health and sociopolitical contexts.
Although the consideration of ITGNC persons often intersects with sexual
orientation, these communities are gender minorities, not necessarily sexual ones.
However, a general lack of understanding of SOGIE concepts exists in Kenya,
leading to ITGNC persons being treated in the same way as sexual minorities. In
order to meet their specific needs, organisations such as Jinsiangu and Transgender
Education and Advocacy (TEA) cater for the human rights and social wellbeing
of ITGNC individuals. Their vulnerabilities include being subjected to bullying,
the legal hurdles to be surmounted to get names and gender markers changed
on documents, psychosocial challenges, and inadequate or complete lack of
medical/health services. In a 2012 interview with Envisioning Global LGBT
Human Rights (Envisioning), Jinsiangu co-founder Guillit Amakobe2 said that
the organisation ‘helps intersex and transgender people with information and
resources regarding transitioning, counselling and complexities of psychosocial
challenges for ITGNC people’. The organisation also facilitates safe spaces and
support specific to members’ needs. Jinsiangu targets the psychosocial challenges
faced by ITGNC individuals, while TEA focuses on such legal issues as name
changes, procurement of identification documents and advocacy for legislation
that protects transgender and intersex persons.
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
310 ENVISIONING GLOBAL LGBT HUMAN RIGHTS
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
LGBT VISIBILITY AND ORGANISING IN KENYA 311
4 Obtained by author from the unpublished NGLHRC report ‘Legal Aid Clinic
summary report 2012–14’.
5 Ibid.
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
312 ENVISIONING GLOBAL LGBT HUMAN RIGHTS
to support cases filed against perpetrators, but also build precedents in the
eventual pursuit of decriminalisation.
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
LGBT VISIBILITY AND ORGANISING IN KENYA 313
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
314 ENVISIONING GLOBAL LGBT HUMAN RIGHTS
Arap Moi also condemned homosexuality during his presidency claiming that
it was ‘un-African’ and un-Christian (BBC News, 1999).
Since 2009 when Ugandan MP David Bahati first proposed the Anti-
Homosexuality Bill (AHB), a clampdown on LGBT people’s rights has spread
into Kenya. Morality dogmas and political innuendos fuelled the ensuing
upsurge of homophobia and transphobia, particularly those put about by
right-wing legislators seeking political mileage. In March 2014, the AHB (now
Act) became law in Uganda.6
Fuelling the anti-homosexuality rhetoric, in July 2012, the Anglican Bishop
Julius Kalu of Mombasa told a congregation that Christians are confronted
by ‘the enemies of the Church’, mainly homosexuals and lesbians, and that
terrorism is a lesser threat (Beja, 2012). Building further upon this negative
perception, Aden Duale, the majority leader, stated during a news conference
in March 2014 that there was ‘need to go and address the issue the way we want
to address terrorism. It is as serious as terrorism and as any other social evil’
(Ngirachu, 2014). Instigators who use extremist religiosity and conservative
interpretations of religious doctrines contribute immensely to the use of
violence and discrimination against sexual and gender minorities.
A group of Kenyan members of parliament (MPs), led by Irungu Kang’ata,
launched a parliamentary caucus against homosexuality in February 2014. This
was during a period of intense international debate over whether the Ugandan
president should sign the AHA. The caucus lobbied for stricter enforcement of
sodomy laws, including calls for citizens to arrest suspected gays and lesbians
where police had failed to act. Further, a 2014 Facebook post by I. Kang’ata7
also incited negative public opinion and violence. This hate campaign was
followed in the same month by an anti-homosexuality protest in Nairobi. Its
leader said that homosexuality ‘is an affront to nature, religious and biological
norms. It is a disgrace to the men and women victims who are supposed to be
role models with upright morals in society’ (Agoya, 2014).
Backed by the MP caucus against homosexuality, a fringe political party,
the Republican Liberty Party, proposed and presented an anti-homosexuality
bill to the Kenyan parliamentary committee on justice and legal affairs.
It prescribed, among other penalties, stoning to death as a punishment for
foreigners engaging in homosexuality and life imprisonment for Kenyan
lesbian and gay individuals. The bill’s proposal was aimed at strengthening the
nation’s capacity to deal with internal and external threats to the traditional
heterosexual family. The bill did not reach parliament, though the petitioners
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
LGBT VISIBILITY AND ORGANISING IN KENYA 315
continued to lobby the parliamentary committee to present the bill for debate
there.
Health implications
Criminalisation of same-sex sexual conduct among consenting adults has led to
their increased vulnerability to HIV/AIDS and those who are under care being
unable to access sexual reproductive health services and treatment (National
AIDS Control Council and National AIDS and STI Control Programme,
2014). Persons infected by HIV are still stigmatised in Kenya and other parts
of the world. The burden of this stigma is doubled by the shaming of, and
discrimination against, persons suspected of engaging in same-sex conduct.
Criminalisation obstructs access to information, support structures, care and
treatment of persons affected by HIV/AIDS. According to the 2014 report cited
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
316 ENVISIONING GLOBAL LGBT HUMAN RIGHTS
above, HIV prevalence among MSM was 18.2 per cent. Yet this population
also experiences lack of – or disproportionate interruptions to – treatment,
caused largely by attempts to arrest and hold people suspected of engaging in
consensual same-sex conduct (Mbote/Gay Kenya Trust, 2011).
Exceptional challenges are also faced by WSW, especially inadequate sexual
reproductive and mental healthcare services. According to a study conducted
by Minority Women in Action (2013) – a constituent member organisation
of GALCK – one out of four respondents had never visited a physician, for
reasons that included fear of being outed to their relations by family doctors,
or being turned away altogether on account of their SOGIE. In other cases,
healthcare providers are insensitive to the needs of WSW and may be prejudiced
by personal beliefs.
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
LGBT VISIBILITY AND ORGANISING IN KENYA 317
The LGBT movement and its partners are cognisant of the fact that for legal
reform to be actualised, a variety of gradual legal processes must be conducted,
because constitutional reform can take years. Combined with a vigorous social
change campaign, it can gain public support, benchmarked on constitutional
provisions for basic human rights for all. Judicial review of the Penal Code
sections is also a strategy, with the ultimate objective being to offer protection
to vulnerable minorities.
As a result of criminalisation, LGBT organisations have been denied legal
registration, forcing the majority of them to register as community-based bodies
and/or under pseudonyms, including GALCK and almost all of its constituent
member institutions. Non-profit bodies are registered and governed by the
National Non-Governmental Organisations Board (NGO Board), under the
Office of the Attorney General. The NGO Board has occasionally justified
refusal to register these LGBT groups, citing their use of names including words
like ‘gay’ and ‘lesbian’, and suggesting that the existence of such bodies is against
the public interest. The emergence of independent movement partners, such as
the NGLHRC, increased the legal reform momentum through increased legal
discourse on SOGIE. Indeed in 2013, the NGLHRC sued the NGO Board
and the attorney general for the former’s refusal to register the organisation.
In April 2015, the Kenya High Court ruled in NGLHRC’s favour, stating
that LGBTI persons can formally register their organisations.10 The bench
also found that the NGO Board had violated Article 36 of the Constitution
(freedom of association), when they consistently refused NGLHRC’s
registration application. The Constitutional Court further held that morality
should not be justification for limiting rights in an open and democratic
society, under Article 24 of the Constitution of Kenya, and further ordered the
NGO Board to comply and register the NGLHRC.
Although this judgment was groundbreaking, it also fuelled a national anti-
homosexuality movement, led by conservative religious formations and the
anti-homosexuality caucus of MPs led by former Kiharu MP, Irungu Kang’ata.
The consistently homophobic Deputy President William Ruto also weighed
in on the judgment, saying at a church service that Kenya had no room for
homosexuals. Kenya’s attorney general, Githu Muigai, has since filed a notice
of appeal against the ruling for the registration of NGLHRC.11
In July 2014, the High Court compelled the NGO Coordination Board
to register a transgender organisation, TEA, after it had refused to do so.12 In
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
318 ENVISIONING GLOBAL LGBT HUMAN RIGHTS
another landmark case, in October 2014, the High Court ordered the Kenya
National Examinations Council (KNEC) to change the names of a transgender
woman’s academic certificates and remove the male gender index. The High
Court judge ruled that KNEC should recall Audrey Mbugua’s national
examination certificate and replace it with one in her name, which should
be without a gender mark.13 This ruling was a big win for the transgender
community, who face immense challenges when applying for name changes
on their identification and academic documents. It also indicated what can be
achieved through the judicial system in Kenya for minority groups.
Rising visibility
Sexual and gender minority persons do not enjoy protections under Kenyan
law. The result of this criminalisation of consensual same-sex conduct has
entrenched stigma and discrimination and other human rights violations,
including deprivation of life. However, the LGBT movement has remained
steadfast and continues to grow. The GALCK coalition, which comprises more
than 15 member organisations from across the country, is also supporting and
building the capacity of grassroots LGBT groups, to activate and strengthen
their engagement within the human rights networks.
Collectives of human rights defenders continue to urge the state to
decriminalise sexual relations between consenting adults of the same sex in
order to bring its legislation in line with the Constitution of Kenya, which
guarantees equal rights for all citizens. In order for all Kenyans, including
sexual minority persons, to enjoy quality citizenship, the government has also
been urged to end the social stigmatisation of homosexuality and send a clear
message that it does not tolerate any form of harassment, discrimination, or
violence against persons based on their sexual orientation. By various means
including the United Nations UPR of Kenya in 2010, and most recently
in January 2015, these recommendations have been made clear to the
government.
Concurrently, the LGBT movement continues to partner with a widening
base of partners and stakeholders who are amplifying their voices and
incorporating LGBT issues into wider social justice efforts. These include
the Kenya Human Rights Commission (KHRC), which in 2011 published a
report titled, ‘The outlawed amongst us: a study of the LGBTI community’s
search for equality and non-discrimination in Kenya’ (KHRC, 2011). Sexual
orientation and gender identity/expression as protected grounds anchored in
human rights have also been incorporated by other partners such as the Kenya
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
LGBT VISIBILITY AND ORGANISING IN KENYA 319
References
Agoya, V. (2014) ‘Lobby plans anti-gay protest’, Daily Nation Kenya, 18 Feb.,
available at: www.nation.co.ke/news/homosexuality-President-Barrack-
Obama-Uganda/-/1056/2211834/-/bryhf3/-/ (accessed 20 Mar. 2018).
American Center for Law and Justice (2016) ‘About the American Center
for Law and Justice’, available at: http://aclj.org/our-mission/about-aclj
(accessed 20 Mar. 2018).
Beja, P. (2012) ‘Bishop: gays dangerous than terrorists (sic)’, Standard Media
Kenya, 23 Jul., available at: www.standardmedia.co.ke/article/2000062448/
bishop-gays-dangerous-than-terrorists (accessed 20 Mar. 2018).
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
320 ENVISIONING GLOBAL LGBT HUMAN RIGHTS
BBC News (1999) ‘Moi condemns gays’, 30 Sep., available at: http://news.
bbc.co.uk/2/hi/africa/461626.stm (accessed 20 Mar. 2018).
Capital FM Kenya (2013) ‘Kenya deputy presidential debate (part
1)’, YouTube video, 14 Feb., available at: www.youtube.com/
watch?feature=player_embedded&v=OU7neGAvmAc (accessed 20 Mar.
2018).
Daily Nation Kenya (2015) ‘There is no room for gays, warns Ruto’, 3 May,
available at: www.nation.co.ke/news/There-is-no-room-for-gays-warns-
Ruto/-/1056/2705458/-/36g1obz/-/ (accessed 20 Mar. 2018).
Gaballa, S. (2017) ‘A crucial case on freedom of association in Kenya’,
The Star Kenya, 4 Mar., available at: https://www.the-star.co.ke/
news/2017/03/04/a-crucial-case-on-freedom-of-association-in-kenya_
c1516295 (accessed 1 Nov. 2017).
Kaoma, K.J. (2012) ‘Colonizing African values: how the U.S. Christian
right is transforming sexual politics in Africa’, Political Research
Associates, available at: www.sxpolitics.org/wp-content/uploads/2012/08/
colonizingafricanvaluespra.pdf (accessed 8 Nov. 2017).
Kenya Human Rights Commission (2011) ‘The outlawed amongst us: a study
of the LGBTI community’s search for equality and non-discrimination in
Kenya’, available at: www.khrc.or.ke/mobile-publications/equality-and-
anti-discrimination/70-the-outlawed-amongst-us/file.html (accessed 20
Mar. 2018).
Mbote, D.K./Gay Kenya Trust (2011) ‘Breaking the walls of criminalization’,
Storymoja Africa, Nairobi, available at: www.gkenyatrust.org/wp-content/
uploads/2012/03/Breaking-the-Wall-of-Criminalization-Business-Case.
pdf (accessed 9 Nov. 2017).
Minority Women in Action (2013) ‘Breaking the silence: the status of women
who have sex with women in Kenya’, available at: https://www.galck.org/
wp-content/uploads/2017/01/Breaking-the-Silence-Status-of-Kenyan-
WSW-2013-first-version.pdf (accessed 9 Nov. 2017).
National AIDS Control Council (2009) ‘Kenya national AIDS strategic
plan 2009/10–2012/13’, available at: http://siteresources.worldbank.org/
INTHIVAIDS/Resources/375798-1151090631807/
2693180-1151090665111/2693181-1155742859198/
KenyaNationalStrategy.pdf (accessed 31 Oct. 2017).
National AIDS Control Council and National AIDS and
STI Control Programme (2014), ‘Kenya HIV prevention
revolution road map’, available at: www.lvcthealth.org/
onlinelibrary?format=raw&task=download&fid=17 (accessed 31 Oct.
2017).
Ngirachu, J. (2014) ‘Homosexuality a serious problem as terrorism, says
Duale’, Daily Nation Kenya, 26 Mar., available at: www.nation.co.ke/
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
LGBT VISIBILITY AND ORGANISING IN KENYA 321
news/politics/Homosexuality-a-serious-problem-as-terrorism--says-
Duale/-/1064/2258336/-/kgxersz/-/ (accessed 20 Mar. 2018).
United Nations Development Programme (2013) ‘Human development
report 2013’, available at: http://hdr.undp.org/sites/default/files/Country-
Profiles/KEN.pdf (accessed 8 Nov. 2017).
Documentary films
A Short Film on Kenyan LGBTI Stories (2013) dir. C. Kaara, J. Muthuri and
I. Reid (Kenya and Canada: Gay and Lesbian Coalition of Kenya and
Envisioning Global LGBT Human Rights), available at: https://vimeo.com/
73786260. Extracts are cited from interviews with Anthony Oluoch and
Brian Macharia.
Telling Our Stories (Kenya Portraits section) (2014) (Kenya and Canada: Gay
and Lesbian Coalition of Kenya and Envisioning Global LGBT Human
Rights), available at: http://envisioning-tellingourstories.blogspot.com
(accessed 16 April 2018). Extracts are cited from the interview with
Guillit Amakobe.
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms
This content downloaded from 202.65.183.60 on Tue, 16 Oct 2018 11:32:21 UTC
All use subject to https://about.jstor.org/terms