September 20, 2012


Same sex marriage is illegal in Kenyan national law but it is being legalised in many other countries. Could this soon be legal here?

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Same sex marriage in Kenya: technically legal under Constitution?

Same sex marriage in Kenya: technically legal under Constitution?

According to a ‘Progress report’ by the United Nations General Assembly Session (UNGASS), HIV prevalence among ‘men who have sex with men’ (MSM) in Nairobi is running 18.2 per cent.


An earlier survey in 2011 by the Biological and Behavioural Surveillance for Most at-Risk Population in Kenya found that 13 per cent of all MSM are still currently married to a woman and therefore hide their sexuality from their wives, a factor that makes the women in their lives vulnerable to sexually transmitted infections as anal sex has a higher risk of HIV infection.


Most MSM still operate in secret for fear of ridicule and discrimination but few have come out openly.

In most cases, a woman will be more secure if the man in her life hangs out with his male friends and not women, which makes it easy for MSM to operate without being caught.

Lesbians on the other hand tend to be more open compared to their homosexual male counterparts probably because there are gestures a normal woman can exchange with another that men are not allowed to, e.g. a woman can peck another woman without raising eyebrows but the same gesture is a crime amongst men.


Homosexuality is illegal in Kenya, and considered a taboo in the traditional set up but ironically some Kenyan communities including the Kalenjin, Kuria and Akamba communities allow elderly women who don’t have children of their own to marry fellow younger women who have children. However, this does not imply that there is any sexual relation between such couples.

A case came to the limelight recently in an inheritance case in a Mombasa court, where one Monica Jesang Katam was battling her late wife’s relatives over inheriting her property. The judge, who ruled in Monica’s favour, declared that the younger woman in question in this case “was a ‘wife’ through customary law” and therefore she and her sons were entitled to inheritance rights.


US President Barack Obama recently endorsed same sex marriages and both Christian and Muslim clerics in Kenya breathed fire and condemned him for legalising what “God Himself” has outlawed.

“Simply because he has risen to be the President of a super power does not mean he can now start acting as God. He is nothing in the eyes of God and his plans will not succeed just like those who preceded him in such plans,” said Sheikh Khalifa a spokesman for the Council of Imams and Preachers.


The anger of religious leaders over same sex marriages may be to no avail, however, given that Article 2 (5) of Kenya’s new Constitution provides that; “The general rules of international law shall form part of the law of Kenya”, and section (6) says, “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”

The Attorney General may soon be officiating same sex marriages!


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