#Repeal162 headed to SCOK

[vooke]

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LGBTQ brigade lost and are now marching to SCOK:
https://edition.cnn.com/2019/05/24/health/kenya-lgbtqi-ruling-intl/index.html

[Kim Jong-Un's Pajama Pants]

The law is closely monitoring where you put your dick, consensual or otherwise.  In 2019.

[Dear Mami]

Finally! I told Lefties instead of trying to shove things down the throats of Africans, they should use the courts. We've seen in previous cases that our courts will not allow the govt to control sex even to prevent/curtail national disasters like HIV/AIDS, so there's no way they'll let these old laws against consensual sex stand. They'll be declared violations of personal liberty. Govt has a huge burden to justify such interference and they couldn't even do it in the AIDs issue.

[vooke]

The petition:
https://www.kelinkenya.org/wp-content/uploads/2018/01/PETITION-.pdf

Amateur legal analysis:

LGBTQ brigade is hoping to persuade the judges that sections 162 and 165 of the Penal code violate Sections 27(4),28, and 31

27.   Equality and freedom from discrimination
(1)   Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2)   Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3)   Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4)   The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

28.   
Human dignity
Every person has inherent dignity and the right to have that dignity respected and protected.

They may try their luck at explaining how their dignity is disrespected

31.   Privacyprivate affairs unnecessarily required or revealed; or
(d)   the privacy of their communications infringed.

[GeeMail]

Vooke your interpretation is confused in a small but significant way.

(4)   The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

The word sex up there is not the act but a reference to identity (reluctant to use gender, but you get the point). In other words, the Constitution is clear on discrimination based on identity, not acts (a matter of individual discretion/choice).

On privacy, the LGBT community in the particular suit may have prejudiced themselves by outing themselves (court action, seeking a public pronouncement to bar discrimination, which is essentially public). One who comes out in the public to proclaim private matters has jeopardized oneself already, requiring no external intervention. It is a waste of the court's time and a frivolous exercise.

[vooke]

Vooke your interpretation is confused in a small but significant way.

(4)   The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

The word sex up there is not the act but a reference to identity (reluctant to use gender, but you get the point). In other words, the Constitution is clear on discrimination based on identity, not acts (a matter of individual discretion/choice).

On privacy, the LGBT community in the particular suit may have prejudiced themselves by outing themselves (court action, seeking a public pronouncement to bar discrimination, which is essentially public). One who comes out in the public to proclaim private matters has jeopardized oneself already, requiring no external intervention. It is a waste of the court's time and a frivolous exercise.

[GeeMail]

Vooke your interpretation is confused in a small but significant way.

(4)   The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

The word sex up there is not the act but a reference to identity (reluctant to use gender, but you get the point). In other words, the Constitution is clear on discrimination based on identity, not acts (a matter of individual discretion/choice).

On privacy, the LGBT community in the particular suit may have prejudiced themselves by outing themselves (court action, seeking a public pronouncement to bar discrimination, which is essentially public). One who comes out in the public to proclaim private matters has jeopardized oneself already, requiring no external intervention. It is a waste of the court's time and a frivolous exercise.

It is actually this privacy issue that brings great confusion and jeopardy. If sex is private (and should not be interfered with, given the constitutional guarantees), why are LGBTs asking the courts to legislate (a public matter) on it? The mere suggestion of discrimination implies they are inviting the courts to open their private bedsheets to the public (because private discrimination cannot be legislated effectively). To ask the courts for legal protections is to publicize a private affair in such a way that self-incrimination is impossible to avoid. It will have to be demonstrated to the court very clearly how a private matter attracts public discrimination, and how a court decision will help matters. Both are impossibilities IMHO.

[vooke]

Vooke your interpretation is confused in a small but significant way.

(4)   The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

The word sex up there is not the act but a reference to identity (reluctant to use gender, but you get the point). In other words, the Constitution is clear on discrimination based on identity, not acts (a matter of individual discretion/choice).

On privacy, the LGBT community in the particular suit may have prejudiced themselves by outing themselves (court action, seeking a public pronouncement to bar discrimination, which is essentially public). One who comes out in the public to proclaim private matters has jeopardized oneself already, requiring no external intervention. It is a waste of the court's time and a frivolous exercise.

It is actually this privacy issue that brings great confusion and jeopardy. If sex is private (and should not be interfered with, given the constitutional guarantees), why are LGBTs asking the courts to legislate (a public matter) on it? The mere suggestion of discrimination implies they are inviting the courts to open their private bedsheets to the public (because private discrimination cannot be legislated effectively). To ask the courts for legal protections is to publicize a private affair in such a way that self-incrimination is impossible to avoid. It will have to be demonstrated to the court very clearly how a private matter attracts public discrimination, and how a court decision will help matters. Both are impossibilities IMHO.

They are not asking the court to legislate, rather they are saying the existing laws are already intrusive and can only be enforced by encroaching on their most private moments.

[GeeMail]

Vooke I see what you mean. There's a way in which a liberal bench can rule in their favor, though I wonder how they would phrase the ruling when declaring those sections of the penal code unconstitutional. It will boil down to interpreting the meaning of dignity, privacy and sex. IMHO, the wording of the Constitution and its protections relate to persons rather than their actions, viz.

Art 27 (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

In other words, a terrorist who blows up a mall (like Westgate) cannot appeal to Art 27(4)  for protection on account of his/her sexual orientation, religion, culture or dress. This means the word "SEX" in the Constitution is a state of being of persons rather than the actions by persons in that state of being. This is the same meaning we attach to Articles 52-57 of the Constitution (children, youth, persons with disability, older persons etc).

On dignity, the contention would be that a person has dignity as a person regardless of what they do. To avoid sounding like Clarence Thomas (on the Obergefell case), the courts cannot rule on dignity less or further than stated by the Constitution, and the penal code does not rob someone of that dignity. The issue is whether the penal code authorizes police to go looking for whoever is in a compromising position "against the order of nature". We know that in practice the police don't do that, and cannot possibly do so effectively, such that persons guilty of that have to be in public (for someone else to report them with sustainable evidence), or self-report, which then makes the matter cross from a private matter to the public (by virtue of self-reporting). So the question then would be, who has violated whose dignity?

The same reasoning will probably apply on privacy. What persons do in private remains private unless they choose to make it public, which is what the petitioners are trying to do.

[Nefertiti]

The gayphobe GeeMail has a point. Until the general public abandons toxic religious and cultural beliefs we are stuck with the archaic stone-age regime of discrimination. Worse I fear the backward "family values" Ruto would enforce this nonsense should he get power.

[vooke]

Vooke I see what you mean. There's a way in which a liberal bench can rule in their favor, though I wonder how they would phrase the ruling when declaring those sections of the penal code unconstitutional. It will boil down to interpreting the meaning of dignity, privacy and sex. IMHO, the wording of the Constitution and its protections relate to persons rather than their actions, viz.

Art 27 (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

In other words, a terrorist who blows up a mall (like Westgate) cannot appeal to Art 27(4)  for protection on account of his/her sexual orientation, religion, culture or dress. This means the word "SEX" in the Constitution is a state of being of persons rather than the actions by persons in that state of being. This is the same meaning we attach to Articles 52-57 of the Constitution (children, youth, persons with disability, older persons etc).

On dignity, the contention would be that a person has dignity as a person regardless of what they do. To avoid sounding like Clarence Thomas (on the Obergefell case), the courts cannot rule on dignity less or further than stated by the Constitution, and the penal code does not rob someone of that dignity. The issue is whether the penal code authorizes police to go looking for whoever is in a compromising position "against the order of nature". We know that in practice the police don't do that, and cannot possibly do so effectively, such that persons guilty of that have to be in public (for someone else to report them with sustainable evidence), or self-report, which then makes the matter cross from a private matter to the public (by virtue of self-reporting). So the question then would be, who has violated whose dignity?

The same reasoning will probably apply on privacy. What persons do in private remains private unless they choose to make it public, which is what the petitioners are trying to do.

Good points. Even if police don't normally jump into Kenyans having sex for purposes of enforcing these sections, I think there is nothing stopping them from doing so on reasonable suspicion of a crime happening. They do this all the times 'acting on tip off' to raid chang'aa dens,drug houses and brothels.

What I'm saying is, reluctance of the police to enforce the section  may not be a good defence. I can see the AG asked to explain how the section would be enforced just to drive the point home

[Dear Mami]

It is actually this privacy issue that brings great confusion and jeopardy. If sex is private (and should not be interfered with, given the constitutional guarantees), why are LGBTs asking the courts to legislate (a public matter) on it? The mere suggestion of discrimination implies they are inviting the courts to open their private bedsheets to the public (because private discrimination cannot be legislated effectively). To ask the courts for legal protections is to publicize a private affair in such a way that self-incrimination is impossible to avoid. It will have to be demonstrated to the court very clearly how a private matter attracts public discrimination, and how a court decision will help matters. Both are impossibilities IMHO.

With due respect, Geemail, I disagree. Having a law on the books already outlawing something is what "invites the public" into the matter, not challenging said law on the basis that it's doing that very thing.

I don't see anything besides a pre-established stance to enforce these laws (partiality) saving them. It's the govt's job to establish that it has a public interest weighty enough to intrude on such matters, to such levels, and they couldn't do it in the AIDS case which involved an objectively good argument for public interest. No idea what argument they can bring to justify a right to tell consenting adults what kind of sex they should have. This is a very different matter than gay marriage. This is the kind of law that can only be maintained by cultural bias infecting the bench, nothing more. Criminalization is the highest govt intrusion you can imagine; gives them the right to deprive you of personal liberty: it should be justified only by the most stringest conditions, like protecting the rights of other individuals, the public, and the state.

[Kim Jong-Un's Pajama Pants]

LGBTQ brigade lost and are now marching to SCOK:
https://edition.cnn.com/2019/05/24/health/kenya-lgbtqi-ruling-intl/index.html

Who determines what is against the order of nature?  Ezekiel Mutua?  Wouldn't that mean no blow jobs, doggy style, foreplay etc?

[GeeMail]

Robina labels won't help the discussion, but if it suits you, go ahead. The law is not enacted in a vacuum. When you read the Penal Code 165, you see a reasonable and commonsensical law. Suppose the petition goes through, does one suppose, for example, that it will now be legal to commit gross indecency in public? That's the kind of legal protections that don't even apply to heteros or whores. Right now, gays can do whatever behind closed doors and nobody will chase them despite the existence of the penal code 162 and 165.

No law will change that unless it is clearly demonstrable that the authorities have abused the Constitution using the penal code. If the petitioners succeed in that, they have a chance in court even if the rest of society does not agree.

The only reason this petition may succeed is because the courts worldwide are under immense pressure to accept the highly influential LGBT agenda. I'm all for human dignity, protection of privacy and equality. However, that must not be license for indecency that actually undermines dignity and makes nonsense of privacy.

[vooke]

LGBTQ brigade lost and are now marching to SCOK:
https://edition.cnn.com/2019/05/24/health/kenya-lgbtqi-ruling-intl/index.html

Who determines what is against the order of nature?  Ezekiel Mutua?  Wouldn't that mean no blow jobs, doggy style, foreplay etc?

They can always fall back on precedents for definition but there really is no objective definition.

Has anyone ever attempted to push for legalization of polygamy in the US? There are no sound arguments against Polygyny or polyandry

[vooke]

It is actually this privacy issue that brings great confusion and jeopardy. If sex is private (and should not be interfered with, given the constitutional guarantees), why are LGBTs asking the courts to legislate (a public matter) on it? The mere suggestion of discrimination implies they are inviting the courts to open their private bedsheets to the public (because private discrimination cannot be legislated effectively). To ask the courts for legal protections is to publicize a private affair in such a way that self-incrimination is impossible to avoid. It will have to be demonstrated to the court very clearly how a private matter attracts public discrimination, and how a court decision will help matters. Both are impossibilities IMHO.

With due respect, Geemail, I disagree. Having a law on the books already outlawing something is what "invites the public" into the matter, not challenging said law on the basis that it's doing that very thing.

I don't see anything besides a pre-established stance to enforce these laws (partiality) saving them. It's the govt's job to establish that it has a public interest weighty enough to intrude on such matters, to such levels, and they couldn't do it in the AIDS case which involved an objectively good argument for public interest. No idea what argument they can bring to justify a right to tell consenting adults what kind of sex they should have. This is a very different matter than gay marriage. This is the kind of law that can only be maintained by cultural bias infecting the bench, nothing more. Criminalization is the highest govt intrusion you can imagine; gives them the right to deprive you of personal liberty: it should be justified only by the most stringest conditions, like protecting the rights of other individuals, the public, and the state.

What 'AIDS case' do you have in mind?
Petition 250/2015 on a presidential directive to test kids for HIV?

http://kenyalaw.org/caselaw/cases/view/132167/

[GeeMail]

It is actually this privacy issue that brings great confusion and jeopardy. If sex is private (and should not be interfered with, given the constitutional guarantees), why are LGBTs asking the courts to legislate (a public matter) on it? The mere suggestion of discrimination implies they are inviting the courts to open their private bedsheets to the public (because private discrimination cannot be legislated effectively). To ask the courts for legal protections is to publicize a private affair in such a way that self-incrimination is impossible to avoid. It will have to be demonstrated to the court very clearly how a private matter attracts public discrimination, and how a court decision will help matters. Both are impossibilities IMHO.

With due respect, Geemail, I disagree. Having a law on the books already outlawing something is what "invites the public" into the matter, not challenging said law on the basis that it's doing that very thing.

I don't see anything besides a pre-established stance to enforce these laws (partiality) saving them. It's the govt's job to establish that it has a public interest weighty enough to intrude on such matters, to such levels, and they couldn't do it in the AIDS case which involved an objectively good argument for public interest. No idea what argument they can bring to justify a right to tell consenting adults what kind of sex they should have. This is a very different matter than gay marriage. This is the kind of law that can only be maintained by cultural bias infecting the bench, nothing more. Criminalization is the highest govt intrusion you can imagine; gives them the right to deprive you of personal liberty: it should be justified only by the most stringest conditions, like protecting the rights of other individuals, the public, and the state.

The argument is moot. Liberty is not infringed when private matters remain private, in which case even the police won't know. That's the essence of privacy. I like the last part, which is what will attract Christians and Muslims to be enjoined in the case. The penal code is an attempt to protect the wider society from acts that may endanger public decency (which apply to heteros as well). Such protections are constitutional.

[Dear Mami]

Liberty is not infringed when private matters remain private,

You're not making sense. How are private matters being allowed to be private when you have a law criminalizing them? That's a blatant contradiction. If it's private then that law has no place in the books since it's outlawing "private things", so what problem do you have with it getting scrapped? Nah, what you're really saying is that it should be left to police discretion to decide when to violate people's privacy and when not to, by giving them a law to do that whenever they decide they want to. I find it dishonest.

I've never supported criminalization of any kind of consensual sex between adults. I find these and the laws against prostitution ridiculous. I support the laws against bestiality, though. Otherwise, you're essentially giving the state the right to throw people in jail for having sex a certain way they've agreed to have it. The state should not be involved in that space, period. By legislating that area of people's lives, it's invading personal liberty in a really gross way. Why should the republic of Kenya have any kind of say or opinion on what two people should do to each other in their bedroom when no one is being raped?

Vooke, it had to do with compelling people to reveal their status to their partners before sex. Unfortunately, I can't remember the name but I'm sure you can find it since we discussed it on this forum at the time, IIRC. Maybe 3 years ago, don't rem exactly. I just remember finding it reasonable and the courts disagreeing with me and declaring it unconstitutional, despite the public interest in stopping the spread of HIV & AIDS.

[GeeMail]

Dear Mami, it's not like I disagree with you on the need to protect individuals from state invasion of privacy. I just don't see how the petition will appeal to the existing constitutional protections as given. I see this being defeated all the way to SCOK with minority dissenting opinions.

[vooke]

Liberty is not infringed when private matters remain private,

Vooke, it had to do with compelling people to reveal their status to their partners before sex. Unfortunately, I can't remember the name but I'm sure you can find it since we discussed it on this forum at the time, IIRC. Maybe 3 years ago, don't rem exactly. I just remember finding it reasonable and the courts disagreeing with me and declaring it unconstitutional, despite the public interest in stopping the spread of HIV & AIDS.

I found it, Petition 97/2010. It made it mandatory for medical practitioners to disclose HIV status of their patients to their 'sexual contacts'

http://kenyalaw.org/caselaw/cases/view/107033/

The main thrust was vagueness and uncertainty of the meaning of the term 'sexual contact'. There was also the issue of privacy, once HIV status is divulged to the 'sexual contact' , there is no control over further dissemination of that info.