A CONSTITUTIONAL APPROACH TO THE DECRIMINALISATION OF HOMOSEXUALITY IN AFRICA: A COMPARISON OF KENYA, SOUTH AFRICA AND UGANDA By SETH MUCHUMA WEKESA SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTORATE OF LAWS (LLD) IN THE FACULTY OF LAW UNIVERSITY OF PRETORIA JUNE 2016 SUPERVISOR: PROF. CHARLES FOMBAD CO-SUPERVISOR: PROF. ANTON KOK 1 © University of Pretoria DECLARATION I declare that this thesis, which I hereby submit for the degree of Doctor of Laws (LLD), at the University of Pretoria, is my own work and has not previously been submitted by me for a degree at another university. Where secondary material is used, this has been carefully acknowledged and referenced in accordance with University requirements. I am aware of University policy and implications regarding plagiarism. Seth Muchuma Wekesa Signature………………………….. Date................................................ i © University of Pretoria DEDICATION This thesis is dedicated to my family. Your prayers and support keep me going. I also dedicate this thesis to all the gays and lesbians in Africa who have suffered discrimination over the years. ii © University of Pretoria ACKNOWLEDGMENT The preparation of this thesis would not have been possible without the help of a number of people. The most important contribution came from my two supervisors, Professor Charles Fombad and Professor Anton Kok who patiently guided me from the preparation of the proposal to the completion of this thesis. They tirelessly read each chapter of this thesis numerous times and provided me with insightful comments. Their sense of thoroughness, enthusiasm and friendliness were beyond depiction. My sincere gratitude goes to Professor Frans Viljoen who helped me in so many ways. He provided me with the opportunity to work on this thesis. He has also been ready to read and comment on my work, to discuss issues relevant to my work, and to provide me with his comments. I am greatly indebted to him. I am also grateful to Pierre Brouard for all his assistance. Thank you so much. I am indebted to Norman Taku for the love, support and encouragement. I am grateful to the ICLA and CHR which not only assisted me financially but also provided me with an environment which was ideal for research. I am especially grateful to Professor Erika De Wet for the scholarship and day fees and Ms. Pumeza Matwa for assistance which made my stay in Pretoria pleasant and memorable. Thank you for arranging literally everything I needed. iii © University of Pretoria This thesis would not have been possible if it was not for the prayer, love and encouragement that I abundantly received from my mother Mary Musee, my father Andrew Musee, my daughter Cindy, my brothers Jack and Chemuku, my sister Norah and my nephew Brai. Thank you all so much. I would like to thank Professor Patricia Kameri-Mbote and Professor Winnie Kamau for their assistance and encouragement. I would also like to thank Dr. Linda Musumba for her assistance and encouragement. I am indebted to you who not only have been a great friend but also a great inspiration. Your comments, questions and suggestions have helped immensely in making this thesis a better work. To my family, friends and colleagues, whom I could not mention due to constraint of space, I am truly grateful. Lastly, I would love to praise the name of God for making this possible and for his so many blessings. iv © University of Pretoria ACRONYMS AND ABBREVIATIONS ACDP African Christian Democratic Party ACHPR African Charter on Human and Peoples‟ Rights UDHR Universal Declaration of Human Rights ACHR American Convention on Human rights ANC African National Congress APA American Psychological Association CAL Coalition of African Lesbians CAT Committee on the Convention against Torture CEDAW International Convention on the Elimination of all forms of Discrimination against Women CESCR Committee on Economic, Social and Cultural Rights CoE Committee of Experts CRC International Convention on the Rights of the Child CSCHRCL Civil Society Coalition on Human Rights and Constitutional Law CSOs Civil Society Organisations v © University of Pretoria ECHR European Convention on Human Rights ECtHR European Court of Human Rights GASA Gay Association of South Africa GLOW Gay and Lesbian Organization of the Witwatersrand HRC Human Rights Committee IACHR Inter-American Court on Human Rights ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of all forms of Racial Discrimination ICESCR International Covenant for Economic, Social and Cultural Rights IGLHRC International Gay and Lesbian Human Rights Commission INGOs International Non-Governmental Organisations LGBT Lesbian, Gay, Bisexual and Transgender MSM Men who have Sex with Men NCGLE National Coalition for Gay and Lesbian Equality NGLHRC National Gay and Lesbian Human Rights Commission NGOs Non-Governmental Organisations NHRIs National Human Rights Institutions vi © University of Pretoria OHCHR Office of the High Commissioner for Human Rights TASO The AIDS Support Organisation UDF United Democratic Front UN United Nations UPR Universal Periodic Review vii © University of Pretoria SUMMARY OF THE THESIS Most African states have criminalised homosexual acts between consenting adults on the basis that it amounts to a threat to the traditional heterosexual family. They believe that sexual orientation is a matter of personal choice and view the act as unnatural and un-African. Religious groups oppose same-sex sexual acts due to sodomy being viewed as a sin which should be prohibited by the law. Kenya and Uganda have criminalised same-sex sexual acts in their Penal Codes. This thesis identifies that the existence of sodomy laws in Kenya and Uganda have served as a justification for the discrimination, harassment, violence and marginalisation of gays and lesbians. Despite the existence of a robust Bill of Rights in the Kenyan and Uganda Constitutions, gays and lesbians have not been able to realise and enjoy their rights. This thesis critically examines how the rights to equality, human dignity and privacy guaranteed in the Kenyan and Ugandan Constitutions can be used to construct a constitutional argument for the decriminalisation of same-sex sexual conduct in both countries. South Africa was used to provide a comparative approach to the study as it has decriminalised same-sex sexual acts after the Constitutional Court declared sodomy laws unconstitutional. It also provides for the protection of the rights of gays and lesbians in its Constitution by expressly including sexual orientation on the list of prohibited grounds of discrimination. It could therefore provide some lessons for Kenya and Uganda. This thesis argues that the equality clauses in the Kenyan and Ugandan Constitutions form a strong case for the decriminalisation of same-sex sexual conduct. It is submitted that the equality viii © University of Pretoria clause in the Kenyan Constitution adopts an open list approach which could be interpreted in a progressive and creative manner to include sexual orientation as a prohibited ground of discrimination under „other status‟ category. It is also submitted that although the equality clause in the Ugandan Constitution adopts a closed list approach, it has listed sex as a prohibited ground of discrimination. For gays and lesbians to rely on this „sex‟ category, the equality clause would require a progressive and creative interpretation by including and reading „sexual orientation‟ within the „sex‟ category. As regards the right to human dignity, it argues that gays and lesbians are human beings that deserve protection by the law. Humanity is enough reason for homosexuals to be treated like other human beings (heterosexuals) and to be able to benefit from the same rights. Therefore the right to human dignity should be used as a tool for inclusion of their rights. It further argues that the courts are in a better position to play a critical role in the realisation and protection of the rights of gays and lesbians in Kenya and Uganda because they have been mandated to interpret the Constitution. It is submitted that for judges to interpret the constitutional provisions on the rights to equality, human dignity and privacy in a progressive and creative manner, they should embrace the notion of judicial activism. They should interpret the Constitution in a manner that upholds constitutional values such as human dignity and equality and avoid relying on public opinion as a determining factor in resolving constitutional human rights issues, especially with respect to those socially controversial ones such as homosexuality. It concludes that judicial activism should be accompanied by social activism since the views ix © University of Pretoria against homosexuality are still heavily embedded in the minds of the majority of Kenyans and Ugandans. This thesis therefore recommends that an expansive public awareness campaigns and sensitisation programs to be developed to promote the idea that gays and lesbians are human beings that deserve not only respect and dignity but also equal rights and treatment. x © University of Pretoria LIST OF KEY TERMS South African Constitution Kenyan Constitution Ugandan Constitution Gays and lesbians Homosexuals Decriminalisation of homosexuality Courts International and regional law Sodomy laws Sexual orientation xi © University of Pretoria TABLE OF CONTENTS DECLARATION.........................................................................................................................................