The Applicability of Rights Towards The LGBTQUIA+ Community in Kenya

Abstract

This study set out assess the applicability and recognition of the rights and fundamental freedoms of the LGBTQIA+ community in Kenya. This community continues to raise a lot of societal controversy and a counterbalance is seen where there is continued growth of such individuals united by a common culture and/or societal movements. This rapid growth has seen several jurisdictions including the western territories decriminalize same sex unions hence encouraging African countries such as Mozambique, Lesotho, South Africa among others to follow suit; Kenya is yet to impose similar treatment having set legislation that criminalizes such activities. This is contrary to the provisions of the UDHR, ICCPR and the ICESCR which speak against segregation on gender identity. A moral panic is and continues to be witnessed in Kenya where the Supreme Court recently affirmed the decisions of both the High Court and Court of Appeal in allowing members of this community to register their own non-governmental organization. While the majority based reliance on the affordability of the freedom of association, this homophobic rhetoric has raised a lot of questions stemming from the head of state, religious leaders, political pundits to the general populace. Concerns have been raised that the decision was arrived at on the basis that the Constitution barred discrimination based on sexual orientation yet this is a deviation of the traditional values and culture encapsulated therein. This study reveals that in order to determine the intention of the framers of the Constitution of Kenya on this aspect, the justification behind limiting rights and fundamental freedoms to such persons has to be established together with the spectrum of recognition of this community. A balance between law and morality as well as conducting a comparative analysis between Kenya and different states has to be done so as to realize the applicability of these rights.