Speaking to CNN’s Christine Amanpour at the Commonwealth Heads of Government Meeting (CHOGM), President Uhuru Kenyatta said that even though the subject was of no major importance for citizens, an overwhelming majority of Kenyans fully supported legislation that criminalised same-sex unions.

He said that in Kenya it was less a matter of human rights and personal freedoms than a societal and cultural issue. “This is an issue of society, of our own base as a culture, as a people. Regardless of which community you come from, this is not acceptable, this is not agreeable.”

Referring to his country of approximately 44 tribes, he said, “I have to be honest with you, these are the positions we have always maintained; those are the laws that we have and those laws are 100% supported by 99% of the Kenyan people, regardless of where they come from.”

Kenyatta has maintained this stance for a long time. In 2015, during then US President Barack Obama’s visit to Africa, Obama addressed the legal discrimination against LGBTQI+ individuals, saying, “When you start treating people differently not because of any harm they are doing to anybody, but because they are different, that’s the path whereby freedoms begin to erode.”

Kenyatta responded: “There are some things that we must admit we don’t share [with the US]; which our culture, our societies, don’t accept.”

Let’s be real

The promulgation of the Constitution of Kenya 2010 was indeed met with excitement by Kenyans as it signified the disposal of many colonial, dictatorial and archaic laws that had held the country back. This constitution, however, also included a Penal Code that, like that of many African countries, criminalises same-sex relationships or associations under the LGBTQI+ umbrella.

There has been a strong push by human rights groups and NGOs for the repeal of these laws, given that they infringe on human and civil rights, leaving these groups vulnerable. Since 2016 the #Repeal162 campaign, led by National Gay and Lesbian Human Rights Commission (NGLHRC) and members of the LGBTQI+ community, has sought to challenge the constitutionality of sections 162(a) (b) and 165 of the Penal Code of Kenya by filing a case in the High Court of Kenya.

Penal Code 162(a) and 165(c) make vague reference to “Carnal knowledge against the order of nature” and the “gross indecency” that criminalises homosexual acts. This not only discriminates against adults who consent to private sexual acts, but also makes unlawful sexual acts that do not result in the production of offspring. Punishment for breaking these laws is up to 14 years and five years imprisonment respectively.

This case filed in the High Court speaks for the right to privacy where adults should be able to engage in consensual sexual conduct in private, without external intrusion; the right to dignity providing for humane treatment; the right to health; the right to equality and non-discrimination, with freedom and security of the person. The reason for focusing on these specific aspects is that it is in fact not illegal to be a homosexual in Kenya, as many believe. What the penal code of Kenya in fact criminalises is the private sexual conduct between two adults of the same sex. The effect of this, however, is the validation of stigma, discrimination and violence towards lesbian, gay, bisexual, transgender and queer persons.

Read: Tanzanian minister: People interested in homosexuality should go live in “countries that entertain such businesses”

Ironically, Article 27.4 of Kenya’s constitution states: ‘’ The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.’’

Nonetheless, both the state and citizens of Kenya continue to engage in systematic discrimination and violence against LGBTQI+ individuals, bolstered by the Penal Code. LGBTI+ individuals continue to face insurmountable challenges in accessing healthcare services, social stigma, police brutality, mob violence, living with the fear of losing their livelihoods, blackmail and extortion.

To further show the hostility that exists toward this marginalised group and is validated by these laws, UK Prime Minister Theresa May has received a heavy backlash on social media across Africa for her remarks at the opening of the Commonwealth Summit. She said she regretted that Britain contributed to what she called ‘biased and discriminatory’ laws and urged countries to revoke those laws.

Societal and cultural Issues

Many African leaders tout the notion of tradition, religion and culture as the reasons for the infringement on the rights of the LGBTQI+ community. Today’s society is ready to pick and choose which ideals and values to uphold at any given time. More often than not, these are notions and practices that favour patriarchy and oppress less represented groups.

People will call same-sex unions “un-African”, when in fact every single African community has such unions represented in their histories in one way or another. Many African communities traditionally made allowance for these groups in some form. Today, these same communities will say that same-sex unions are “against the church”, yet they allow the abuse of children and the fleecing of the masses by that very institution.

Every single African community has such unions represented in their histories in one way or another.

Some examples of LGBTQI+ historical presence in Africa, as listed in a 2015 article in the Guardian, include:

 In Yoruba, the word for “homosexual” is “adofuro”, a colloquialism for someone who has anal sex. While the word might sound insulting and derogatory, the point is there is a word for the behaviour. Moreover, it is not a new word; it is as old as the Yoruba culture itself.

Read: Zimbabwe rejects recommendation to reconsider stance on same sex-marriages

 In the northern part of Nigeria, “yan daudu” is a Hausa term to describe effeminate men who are considered to be wives to men. While the Yoruba word might be more about behaviour than identity, this Hausa term is more about identity. You have to look and act like a “yan daudu” to be called one. It is not an identity you can just carry. It is also important to note that these words are neutral; they are not infused with hate or disgust.

 In the Buganda Kingdom, part of modern-day Uganda, King Mwanga II was openly gay and faced no hate from his subjects until white men brought the Christian church and its condemnation. Though King Mwanga is the most prominent African recorded as being openly gay, he was not alone.

 In Boy-Wives and Female Husbands: Studies of African Homosexualities, edited by Stephen O. Murray and Will Roscoe, a book that examines homosexuality and feminism in Africa, the researchers found ‘‘explicit” Bushman artwork that depicts men engaging in same-sex sexual activity. There are many other indicators that the transition within many African ethnic groups from boyhood to adulthood and girls preparing for their marital beds involved same-sex sexual activities.

Read: No, the award-winning film Inxeba isn’t a disrespectful gay sex romp

Homosexuality is not harmful to gay men and women, or to anyone within its “vicinity”, so there is no reason to outlaw it in Africa or elsewhere. To stop the persecution of the LGBTQI+ community on the continent, it is of paramount importance that we start to re-tell our history and remember that our true African culture is one that celebrates diversity, promotes equality and acceptance, and recognises the contribution of everyone, whatever their sexuality.