Joint Press Statement by GALCK and ICJ-Kenya:
UN Human Rights Committee probe on Kenya’s implementation of the provisions of the International Covenant on Civil and Political Rights (ICCPR)
The 105th Session of the Human Rights Committee in Geneva is the 105th session of a process held every 2 years during which the human rights situation of the member countries is probed and the countries’ reports examined. On the 17th and 18th of July 2012 Kenya’s implementation of the provisions of the International Covenant on Civil and Political Rights (ICCPR) was probed. The ICCPR is a covenant that Kenya ratified in 1976 therefore binding itself to adherence of international standards of civil and Political rights. Whereas this was a great opportunity for the Kenyan government to make representation to its peers about the status of several human rights issues still unresolved in Kenya, in the view of the Kenyan LGBTI human rights movement it was an opportunity marred by improperly phrased questions that can and did in fact lead to misinformation about the priorities of Kenya’s LGBTI movement.
The question about decriminalization of crimes that are typically based on sexual orientation was raised in Issue 26 of the list of issues. It is the view of the Gay and Lesbian Coalition of Kenya and the Kenyan section of the International Commission of jurists that unfortunately, the issue was poorly phrased by the Committee as the decriminalization of same sex unions. Despite an attempt by a committee member to clarify that the focus of the issue is not the legalization of same sex relationships but rather the decriminalization of sex and of same sex sexual activity because it marginalizes Kenyan citizenry and has a negative impact on public health (an observation also shared by a member of Kenya’s party delegation),we are disappointed to note that the Kenyan delegation through the Minister of Justice, Eugene Wamalwa, opted through its answer to address the misplaced issue of same sex unions in Kenya as initially misrepresented as opposed to addressing how the government intends to address the marginalization and public health needs of its non heterosexual citizenry.
We, the Gay and Lesbian Coalition of Kenya and the Kenyan Section of the International Commission of Jurists, with the shared mandate of the protection of and accessibility of human rights for all including LGBTI persons, and having consulted with representation from the LGBTI community, wish to set the record straight on what issues the sexual and gender minorities in Kenya are calling on the Government to address.
The Constitution of Kenya contains a Bill of Rights in chapter four and aptly states in article 19(2) that “the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of ALL human beings.”Among these rights and of particular relevance to the LGBTI community is;
The right to Life (Art 26);The right to equality and freedom from discrimination (Art 27);The right to human dignity (art 28);The right to freedom and security of person (art 29);the right to privacy (art 31);Freedom of association (art 36);Freedom of assembly, demonstration, picketing and petition (art 37);freedom of movement and residence (art 39); economic and social rights (art 43);The right to fair administrative action (art 47) and the right to access to justice (art 48) as just a few of the rights that all Kenyans (regardless of sex, tribe or sexual orientation) claimed as entitlement during the referendum process.
Sub article (3) (a) states that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the state. This means that these freedoms are an entitlement and not subject to limitation as implied in the response given by the minister of Justice before the Human Rights Committee. Further, it makes sections 162,163 and 165 of the Penal Code of Kenya unconstitutional.
Article 20 (2) goes further to provide that, “EVERY PERSON shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.”
As detailed by the Kenyan National Commission on Human Rights (KNCHR) alternative report to the Human Rights committee presented in April 2012, the negative impact of criminalization based on sexual orientation goes beyond limiting access to HIV treatment for Most At Risk Populations (MARPS). It also speaks of discrimination and fear when accessing other rights; it speaks of intolerance and misunderstanding by the public towards sexual minorities and by association gender minorities including transgender persons. The alternative report also speaks of non-recognition of intersex persons, a vulnerable group which for example needs separate incarceration facilities from men and women.
If we as a country are to achieve true equality and non discrimination, then we cannot overlook the various human rights violations that occur as a result of the unconstitutional provisions of the penal code. Human Rights are not subject to a majoritarian veto. As such we are of the opinion that justification by the Kenyan state delegation to the Human Rights Committee that ‘the Kenyan public cannot endorse such changes is misrepresentation to the world that Kenyans would rather stand for human rights violations over justice. The LGBTI community in Kenya is asking for the right to access the rights enshrined in our Constitution as human beings and as Kenyans. We wish to remind the state delegation at the HRC, that Kenya is a democratic society whose values are human dignity, equality, equity and freedom. Article 19(3) (a) of the constitution states that the rights contained therein belong to EACH INDIVIDUAL and are not a token.
We challenge the Kenyan government and all state organs to abide by the Constitution and do its job of observing, respecting, protecting, promoting and fulfilling the rights and fundamental freedoms of ALL its citizenry regardless of sexual orientation or gender identity as prescribed in article 21(1).