In February, Kenya’s high court delayed the eagerly-awaited ruling. While across the world many looked forward to a definitive ruling on the humanity of gay people in the country, the court said it needed more time to consider the case to strike down what activists have called unconstitutional sections of the nation’s penal code that criminalise same-sex activity.
“We need more time,” Judge Chacha Mwita pleaded with the packed court. “My file alone put together is above my height standing, so we are still working…”
The wait until May 24, when the ruling is due, is wrenching, but it gives everyone more time to consider the implications of what is happening in Kenya. Things have after all moved incredibly fast since this case was brought to the courts a year ago.
In that same period of time, the courts have delivered two victories to rights activists — upturning an earlier court case validating forced anal examinations of gay men, and allowing Rafiki: a movie centred on a romantic relationship between two women — to be screened in selected cinemas in the country.
What’s happening in Kenya is nothing short of a miracle.
From being part of a cohort of sub-saharan African countries where homophobia is not just legalised but celebrated (half of the total number of countries where being gay is illegal are in Africa), Kenya is now a country where a thoughtful, nuanced cultural conversation is happening about the place and future of gay people, because the courts have legitimised the conversation.
This is important, because Kenya is important. It is one of the more prominent nations in the continent, with a flourishing democracy, a booming economy attracting impressive foreign investment, a sophisticated and ascendant youth culture, attention from the world, and cultural and political leadership in East Africa.
It has also been one of the more homophobic nations in the world, with gay people facing up to 14 years in prison, religious leaders spouting hateful rhetoric and politicians underlining the hostility. To move from that heady history into a space where the courts are taking the rights of sexual minorities very seriously is cause for joy.
If the courts deliver a verdict validating the rights of its minority citizens, the victory will ring loud and clear across the region, including in my country Nigeria, where its judges could not conceivably be as brave as Kenya’s jurists, and where, despite an evidently active gay culture, the laws are one of the most restrictive in the world.
If Kenya can do it, joining South Africa, Cape Verde, Mozambique, Seychelles, Ivory Coast, Congo, Angola (recently) and 13 other countries as the only countries in Africa where same sex relationships are legally accepted, the excuse for other nations with supposedly open societies, competitive democracies and free markets like Nigeria will weaken considerably.
It will be a clear statement that those who refuse diverse and inclusive societies are taking a back seat in a world that is joyously embracing same. India made the case across the world loud and clear with its historic ruling last year. Kenya will drive the point home in Africa.
And if courts deliver a ruling against gay rights? It will not be surprising. Those who stand on the right side of history will however have the wind at their back. Where once these conversations were only to be had on the fringes now the issue stands in the front burner of public life, legitimized and validated as a rights imperative that will not go away.
In a continent that has spent too long hiding in the shadows, denying its own reality and fighting its own minorities, emboldened by antiquated colonial laws already abandoned by their creators, that is no small victory.
Whatever way the courts bend on May 24, the culture in Kenya, and thus in Africa, will have nowhere to hide from the throbbing humanity of its gay citizens.
Chude Jideonwo is a storyteller, using the research and evidence on human flourishing to inspire new narratives about politics, markets, faith, identity and society in Africa. He is founder of happiness and resilience company, Joy, Inc. (joyinc.xyz) and an Archbishop Desmond Tutu Fellow.