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Today we commemorate International Day against Homophobia, Transphobia and Biphobia, a day set aside to draw attention to the violence and discrimination experienced by lesbian, gay, bisexual, trans, intersex people and all of those with diverse sexual orientations, gender identities or expressions, and sex characteristics. 17th May also marks a major milestone in the advancement of human rights for LGBTQ+ as it is on this day in 1990 when the World Health Organisation decided to declassify homosexuality as a mental disorder. As we reflect upon this year’s theme of ‘No One Left Behind: Equality, Freedom and Justice For All’, we are deeply concerned by the recent efforts to erode Constitutionalism through amendments that pose a threat to Kenya’s constitutional framework of checks and balances, respect for international law, and commitment to human rights.

One such proposal is the ‘Linda Jamii’ (Constitution of Kenya) Amendment Bill proposed almost a year ago, which wishes to restrict abortion even in cases where this medical procedure is necessary; the freedom of conscience, religion, belief, and opinion; the freedom of association; and the freedom of expression.

According to its drafters, an association of Christian professionals, the bill aims to reverse recent court decisions that have found that our supreme law safeguards key rights around abortion and the Human rights of LGBTQ+ persons. The bill’s drafters consider these decisions as profoundly undermining religious institutions and families’ role in instilling “moral obligations” in society. They therefore propose what they describe as “minimal” amendments to the constitution to protect the family unit in Kenya. 

A careful review of the bill’s contents demonstrates the lengths some in our society will take to impose their puritanical and anti-democratic beliefs on others and its drafters’ misunderstanding of Kenya’s constitutional framework, or why Kenyans clamoured for a new constitution in the first place. If enacted, Kenyans would lose key human rights protections overnight, regardless of whether they are caught up in the current global culture war on abortion, LGBTIQ+ human rights, and the freedom of expression.

According to its drafters, an association of Christian professionals, the bill aims to reverse recent court decisions that have found that our supreme law safeguards key rights around abortion and the Human rights of LGBTQ+ persons. The bill’s drafters consider these decisions as profoundly undermining religious institutions and families’ role in instilling “moral obligations” in society. They therefore propose what they describe as “minimal” amendments to the constitution to protect the family unit in Kenya. 

A careful review of the bill’s contents demonstrates the lengths some in our society will take to impose their puritanical and anti-democratic beliefs on others and its drafters’ misunderstanding of Kenya’s constitutional framework, or why Kenyans clamoured for a new constitution in the first place. If enacted, Kenyans would lose key human rights protections overnight, regardless of whether they are caught up in the current global culture war on abortion, LGBTIQ+ human rights, and the freedom of expression.

To address the inevitable concerns that would be raised by such a fundamental reworking of our human rights framework by the international community, the Linda Jamii referendum bill proposes limits on the application of international law if such laws are inconsistent with Kenyan law. The bill also has plenty of proposals to limit the power of the judiciary when it comes to the adjudication of human rights claims, potentially affecting recent progressive jurisprudence by our courts. For instance, the bill proposes to amend Article 36 on the freedom of association to allow the government to refuse to register organisations that “promote or support illegal conduct.” Should this provision be enacted, the NGO Coordination Board would have grounds to refuse to register the National Gay and Lesbian Human Rights Commission (NGLHRC), in contravention of a landmark Supreme Court decision which found that the NGO Board’s refusal in this regard contravened constitutional provisions that prohibit discrimination and the freedom of association. 

In the sights of the drafters of this bill are also recent court decisions that have affirmed the constitutionality of procuring an abortion under limited circumstances. Here, the drafters adopt a systematic approach to gutting our constitution’s provisions, first by proposing the insertion of “family values” and “the sanctity of human life” as national values and principles of governance under Article 10 of the Constitution. Additionally, the drafters of the Linda Jamii referendum bill propose changes to how abortion is defined, place further restrictions on when an abortion can be procured, and which medical professional can perform the abortion procedure. The placing of vague limits and conditions on abortion care is a favoured tactic of anti-abortion activists, with the effect being that otherwise permissible abortions, such as in cases where the foetus is not viable, are rendered illegal to perform. The proposed redefinitions of keywords contained in the constitution are not limited only to abortion-related terms. The bill proposes new definitions for “sex” and “gender” in a bid to freeze their meaning in time, obstructing the court from considering scientific and social developments that are constantly challenging our fixed views on sexual and gender diversity. The bill also proposes an outright prohibition on same-sex marriage, a gratuitous insertion since the constitution already interprets marriage as a union of opposite-sex couples. 

To many Kenyans, the provisions contained in the Linda Jamii referendum bill would, at first glance, seem agreeable. However, the devil, as always, is in the details. The Linda Jamii referendum bill operates from a misunderstanding of the role constitutionalism plays in our society. As the drafters of the bill admit, many of the amendments they propose were rejected a decade and a half ago during the constitution drafting process. Limits on the freedom of expression and the right to association were specifically rejected due to the risk of abuse by those with power, particularly the state. The inclusion of strong safeguards to protect sexual and reproductive rights by the drafters of the constitution was aimed at holistically addressing the health needs of Kenya within a context where seeking health services related to one’s sexual and reproductive health was considered taboo, with disastrous consequences. Religious edicts on same-sex relationships and LGBTQ+ human rights were specifically excluded from our democratic constitution due to the risk of abuse as well as the understanding that Kenyans’ attitudes around these rights issues may change with time. Though heralded as a progressive constitution, our Katiba is in many ways a balancing act that tries to accommodate the interests and aspirations of a diverse national community. A glaring gap in the understanding of the drafters of the Linda Jamii referendum bill is that they do not see the 2010 Kenyan Constitution as a living document like the drafters and the voters who passed it. 13 years since the constitution was inaugurated, there have been seismic changes in Kenyan society, many of these attributable to the forward-looking constitutional provisions that the drafters of the Linda Jamii referendum bill are seeking to undo. Perhaps the most pernicious aspect of the Linda Jamii referendum bill is its attempt to enshrine religious provisions and interpretations in what is intrinsically a secular law. Despite the full-throated complaints by the drafters of the bill that recent progressive jurisprudence threatens the role of religious institutions in our society, no legal basis for this role exists in our constitution or the laws in place to implement the supreme law. Kenya’s secular constitution separates the church and the state precisely because the religious and ideological diversity of our country makes it impossible to have a fair and equitable governance system that is modelled on religious teachings. In place of religious or family values, Article 10 of the constitution provides a set of values and principles that, if implemented, would create a far more robust set of mores that would apply to all Kenyans, including those who do not draw their moral ethos from religious teachings.

The amendments to our constitution proposed in this law, far from being minimal, specifically create opportunities for the reversal of hard-fought constitutional gains. It seems we have forgotten why Kenyans clamoured for a constitution in the first place. During the reform movements of the 80s, 90s and early 2000s, Kenyans were aware of the dangers of living in a country where human rights, democracy and the rule of law were weakened. When the time came for the drafting of a new constitution, special attention was given to these principles, leading to the creation of a government of three co-equal branches, with a strong emphasis on individual rights and freedoms, and a forward-looking constitution. It is imperative for Kenyans to remain vigilant in protecting the essence of our constitution and resist any amendments that compromise the hard-fought principles embedded in our foundational law.

Equality, Freedom and Justice should be For All!