In this post from the website of the International Association of Constitutional Law, blogger Aditendra Singh of the National Law University, Delhi, compares two similar cases from Kenya and Botswana. He poses the question: What made the courts adjudicate the matters so differently?
In 2019, two seminal cases dealing with the constitutionality of anti-sodomy laws were handed down by the High Courts in Kenya and Botswana. Respectively, these were EG vs. Attorney General (May 24th, 2019 – Kenya), and Letsweletse Motshidiemang vs. Attorney General (June 11th, 2019 – Botswana). While the Kenyan High Court upheld the anti-sodomy laws, the Botswanan High Court struck them down. Even though the arguments in the two cases had striking similarities, the judgments delivered were completely different. So, the pertinent question here is: What made the courts adjudicate the matters so differently? In this post, I, firstly, discuss and analyse the major arguments relied on in the two judgments. The arguments used are important because they are often used outside the legal world to justify various claims related to gay rights. I then delve into the reason why there was so much bifurcation in these judgments before concluding.
It is worth first noting some similarities between Kenya and Botswana. First, both Kenya and Botswana are former British colonies that, until recently, had similar sodomy laws in place because of the Victorian-English morality of their coloniser (which inculcated an anti-homosexual stance). Second, both Kenya and Botswana, after becoming independent in 1963 and 1966 respectively, enacted constitutions that guarantee equality, liberty, dignity, privacy and other fundamental rights. Interestingly, many former British colonies get their anti-sodomy laws from the provision enacted in India in 1860. It is within this paradigm that I analyse these judgments.
Arguments for Equality
The constitutions of both these countries entrench fundamental rights and denounce discrimination. So why have anti-sodomy laws even existed there in the first place? One argument sometimes relied on is that anti-sodomy laws target only certain actions and not gender identity as such. The argument, therefore, is that what is prohibited is sexual conduct of a certain kind; conduct which may not be engaged in by anyone, regardless of their sexual orientation. This reasoning underpinned the decision of the Indian Supreme Court in Suresh Kumar Koushal & Anr vs. Naz Foundation (December 11th, 2013); a judgment that was later overturned by this same court in Navtej Singh Johar vs. Union Of India (January 8th, 2018).
The Kenyan High Court also accepted the argument that anti-sodomy laws criminalise certain acts and not homosexuality. The Court failed, however, to take into account the phrase “prohibiting direct and indirect discrimination” in Article 27 of the Kenyan Constitution. This phrase requires a court to consider the consequences of impugned law or action, challenged on the grounds of discrimination when deciding on its constitutionality. Making a similar argument in the case of Lawrence v Texas (June 26th, 2003), United States Supreme Court Justice, Anthony M. Kennedy, observed that when an act “is closely correlated with being homosexual… there can hardly be more palpable discrimination against a class”.
In the South African National Coalition case (October 9th, 1998) too, the Constitutional Court noted that criminalising the act of sodomy criminalises the sodomite per se and that such laws construct the identity of the person as legally salient. In response to arguments before the Kenyan High Court about the effects of anti-sodomy laws, the Court held “a party pleading violation of constitutional rights is at the very least expected to give credible evidence of the said violation… no tangible evidence was given to support the allegations”.
The Botswanan High Court, on the other hand, made a contextual inquiry, it considered the prevailing circumstances and events, rather than just the words of the relevant provision. Even though what defines discrimination in the Botswanan Constitution is close-ended, the court interpreted the term ‘sex’ flexibly to include sexual orientation. The Court said that, as “sex and sexual orientation, are associable signifiers of a similar scope and content”, ‘sexual orientation’ can be understood as being a part of ‘sex’. It also took into consideration the high levels of discrimination against the LGBTQ community, something that was discounted by the Kenyan court for purportedly being a claim lacking in evidence.
Arguments for Vagueness
In the sodomy laws of various nations, terms such as ‘carnal intercourse’, ‘intercourse against the order of nature’, ‘gross indecency’ and ‘unnatural sex’ are common. These terms do not have any definite meaning, and therefore, governments and courts have had to provide interpretations for such phrases – often providing narrow interpretations.
In most constitutional democracies, if a provision that criminalises actions is imprecisely phrased, it will be declared void due to vagueness. In both of these court cases, the applicants did challenge the constitutionality of the relevant provisions on the grounds of vagueness. Both the Botswana and Kenya High Courts, however, found that legal precedent had provided sufficient clarity on the interpretation of the relevant words that the provisions were not vague.
Arguments for Privacy
Another question in which both the courts engaged and which, arguably, is a futile analysis for a court to engage in, was whether the sexual orientation of LGBTQ people is innate or not. This issue is irrelevant to a judicial enquiry because sexual identity is an intimate choice which ought to be respected within any liberal democracy as a part of decisional autonomy. The Kenyan court went as far as finding that legalizing sodomy would pave the way for the acceptance of same-sex marriage, which is forbidden under Kenyan law. This assumption is incorrect, as a union cannot be called a marriage unless it has been registered under the Kenyan Marriage Act, which makes no provision for the registration of same-sex marriages. On the other hand, the Botswanan court held that intimate choices must be free from state control – thereby upholding decisional autonomy.
The Kenyan Court not only missed a golden opportunity to address a long-standing wrong, but it also opened itself up to significant criticism. Anti-sodomy laws are a creation of the Victorian model of society, which not only denounced but also imposed criminal sanctions for homosexuality in dozens of colonised countries, including Kenya and Botswana. What is particularly unfortunate is that this draconian, colonial, law, imported into these states by the British, survived decades after they had become independent, and even after Britain itself had repealed similar criminal provisions.
The Kenyan High Court judgment reads like a defence of these laws. The judgment shows a willingness on the part of judges to maintain the status quo, evidenced by how they refuse to acknowledge the existence of discrimination against the gay community. Eric A. Posner notes in his book Law and Social Norms that laws that criminalise the sexual relations of members of the LGBTQ community influence the perception and attitude of the broader society against members of this community; the normalization of this perception then turns this attitude into a social norm. I do not think it far-fetched to say that judges are also influenced by prevailing norms in the society in which they live. Alok Gupta observes that many sodomy laws are still recognised, in the name of public order, in the penal codes of many countries. The criminalisation of these acts, therefore, finds its basis in social disapproval.
The Botswanan High Court, on the other hand, taking a liberal stance, acknowledged the debilitating effects of these laws on this community. A thorough reading of the judgment has left me with the impression that this court is prepared to limit the state’s power to control the personal lives of people from this community. The tone of the judgment, from the very beginning, indicates a sense of negation of the long-standing discourse around the subject. It shows a transition from ideas of ‘public morality’ to the recognition of ‘constitutional morality’. This judgement should be applauded for upholding judicial common sense.
Undoubtedly, the decision of the Kenyan High Court is a blow for liberal democracy in Kenya. This judgement is problematic because it strikes at the heart of the idea of a contemporary world in which every individual is treated equally irrespective of their sexual orientation, religious views or opinions, or of any other aspect of individual identity. It cares for the majoritarian perspective, ignoring the inherent rights and dignity of a marginalised, minority community.
The Botswana High Court, on the other hand, adopted a transformative constitutionalist approach, demonstrating that the Kenyan court had room to engage in a different narrative. The judgment from Botswana did not import anything from outside the Botswana Constitution; rather, it interpreted the Constitution in a holistic and inclusive way. In this way, the Botswanan High Court protected the bodily dignity of individuals from governmental interference. This judgment’s recognition that there needs to be equal treatment and full acceptance of all people within a pluralistic, democratic society should not be seen as a new constitutional concept, but as a natural right which should have been realised long before. Given how the discourse about sexuality is changing the world over, I am hopeful that it will not take long for courts in Kenya to adopt the language of the Botswanan High Court. I am also hopeful that, elsewhere, the members of this community will have reason to celebrate many more such judgments (or the recognition of these constitutional principles through the legislature) and that this will increase the pride and confidence of the LGBTQ community.
Aditendra Singh is a student at National Law University, Delhi.
Suggested citation: Aditendra Singh, ‘Insights into LGBTQ Judgements Out of Kenya and Botswana’ IACL-IADC Blog (25 February 2020) https://blog-iacl-aidc.org/2020-posts/2020/2/25/insights-into-lgbtq-judg...