Ili kuhakisha kwamba una haki ya kuishi
—Warembo Ni Yes
Warembo Ni Yes, a coalition of Kenyan women activists with the beautifully translated name “beauties are yes” articulate wisely and rightly what is at stake in the political: the right to live—haki ya kuishi. In their support for the Yes campaign, they express their hope for a constitution that will recognize women as full human beings, as Shailja Patel explained in a recent interview.
The right to live. Full humanity.
These are more than empty phrases. They capture the power of state documents to denude humanity, to create sub-classes of humans through a range of legal measures. To offer just one example, under the current Kenyan law, women who marry foreigners have no way to provide those partners with access to citizenship. Citizenship is passed from husbands to wives. It is an archaic law that speaks, all too well, to the continuing hold of patriarchy in this country. I will note, in passing, that all our wrangling over ethnicity and corruption has done little to challenge the hold of patriarchy. Patriarchal politics proceed relatively unchecked.
Like Warembo Ni Yes, I support the right to full humanity. As a feminist, I celebrate a Constitution that finally begins to recognize women as full citizens.
And then I run into an all-too familiar problem: the split allegiances that seem to forever encumber progressive politics. There is a story behind this. Let me offer a truncated version.
In 2006, the Kenyan Parliament passed the Sexual Offences Law. A long time in the making, the law recognized that Kenya had few effective mechanisms to deal with sexual violations against women and girls and men and boys. The laws on the books were ineffective, often rendered in the language of morality rather than crime (an offense against morality rather than an assault against a person, for instance).
The process leading up to the passing of the law was contentious, demonstrating fissures between progressive and conservative Kenyans. Early on, in December 2004, progressive Kenyans had included sections in the proposed bill that would have decriminalized sodomy and prostitution. By the time the bill was officially introduced into parliament, in the early months of 2005, these provisions had been removed. As debates on the bill progressed, it contracted in scope, seeking not to protect women and girls, men and boys, but wives and daughters, husbands and sons.
The family became the target of sexual offenses. Elsewhere, I map out how this contraction happened and some of its implications. One major implication was that practices associated with creating and sustaining families could not be criminalized. In a framework devoted to protecting the family, it becomes very difficult to pass a law against marital rape.
Shortly after the bill was signed into law, attorney general Amos Wako introduced a Marriage Bill. Ostensibly designed to harmonize the various marriage arrangements protected by multiple statutes, the Marriage Bill also managed anxieties produced by the Sexual Offences law making process by specifying that marriage was a union between a man and a woman. As far as I can tell, the Bill has not proceeded much further.
But perhaps it does not have to.
The very language defining marriage as between a man and a woman has been imported into the Draft Constitution. Read carefully, the section on marriage not only refuses to allow for the possibility of same-sex marriage (which, I should note, actually has roots in Kenyan cultural practices and is not a “recent” import), but also defines gender in rigid, exclusive terms.
And while, as I have written before, I do not think same-sex marriage should be the main goal of queer activists, it is important to register how this particular suture of marriage and gender and sex works against queer activism and interests.
Thus far, Kenyan LGBTI activists have remained silent about this provision—or have not spoken loudly enough to be heard. Instead, they have argued that the new Bill of Rights provides space for intervention. While that might be true, I am not sure that a Constitution that refuses to recognize gender diversity can be used to redress discrimination based on gender status.
Quite simply: this Draft Constitution weds the status of being human, indeed, the right to be human, haki ya kuishi, to hetero-reproduction and gender normativity. It gives and takes away.
Anyone familiar with histories of race and feminism will recognize the pattern I have traced. Many black women have noted that as racial progress was made, it was wedded to a model of black patriarchy. Race before gender. And then, as women spoke up, lesbians were often sidelined. Gender before sexuality. And on it goes.
It is incredibly frustrating to keep being told that one must choose. And even more frustrating that in tedious, repetitive variations across multiple times and spaces, queers get to be the sacrificial goats. The good-natured ones asked to understand that of course their needs matter. But they are not a priority.
Even more distressing has been how the story has played out in the current Referendum campaign.
Seeking votes to support the No vote, William Ruto claimed that the Draft Constitution enabled gay marriage. In response, supporters of the Yes vote joined Ruto’s homophobia in affirming that it did not support gay marriage.
For one brief, significant moment, No and Yes met in their shared homophobia.
While this moment’s brevity might not seem to merit comment, I would argue that it tells us something very important about the construction of Kenyan identity within the political space. We may disagree on corruption and the imperial presidency and on land ownership and on abortion and on the Kadhi’s court.
We unite in our shared homophobia.
From my perspective, from a queer perspective, any victory in the Referendum is predicated on dehumanizing queers.
Of course, we could argue that sacrifices must be made and that politics is based on compromise. Yet, as I look back at the Sexual Offences Law and the Marriage Bill, as I look back over more than five years of Kenyan law-making, I must ask whether queers ever get a chance. Deals continue to be made by sacrificing queers. Over and over and over.
And the beautiful guarantee to life, haki ya kuishi, campaigned for by the wonderfully named Warembo Ni Yes? It is not even within the realm of dreaming. Not for this queer Kenyan.