Interview with Eric Gitari "Sometimes I wish I was born two hundred years ago"

The National Gay and Lesbian Human Rights Commission (NGLHRC) provides legal aid to the LGBTIQ community in Kenya. The organization is run by five lawyers and one accountant. We talked to Eric Gitari, one of the lawyers about the queer movement in Kenya, the new constitution as well as the victories they have had so far.

Eric Gitari, when was the NGLHRC found and what was the need for it?

The NGLHRC was found in April 2012. We wanted to provide access to legal aid for a community that was criminalized, marginalized and excluded from different spheres of society. The NGLHRC is using law as a tool to achieve social justice and societal change generally. Before that the Kenyan Human Rights Commission (KHRC) had carried out a country-wide study on the LGBTIQ community in Kenya. ( The Outlawed Amongst Us, Pdf, 480 KB)  This study clearly showed that there was a need to provide legal services to this community. In Kenya the constitution does not explicitly provide protection against discrimination based on sexual orientation or gender identity. It is a legal gap.

The constitution is not anti-gay

What challenges have you faced as an organization since the beginning in April 2012?

One step towards registering an organization is reservation of a name with the NGO board. I went there six times and they said 'No'. The legal officer of the NGO board told me as long as section 162 of the penal code exists - that criminalizes homosexual sex - the NGO board will not register an organization whose objective it is to protect people who are committing a crime. But in article 36 of the constitution it is said that every person has the right to join, form, and participate in an organization of any kind. Any person! Any kind! What do those words mean? Do they exclude certain persons? Are there Kenyans who are excluded from enjoying certain rights, and if so on which criteria? In October 2014 we went to the Constitutional Court to fight for our right to register our organization, the ruling is still pending, but we are very optimistic. We believe the constitution is on our side.

Can you give some examples where the new constitution of 2010 opens windows for the LGBTIQ community and where it is lacking?

Article 27 sub-article 4 says that the state shall not discriminate directly or indirectly on any ground including sex. Article 2 sub-article 6 and 8 mentions inclusion of international law as part of the domestic law in Kenya. This includes International Covenant on Civil and Political Rights (ICCPR), which means protection against discrimination on the grounds of sex and sexual orientation. The part where the constitution shoots itself in the foot is in Article 45 sub-article 2 where they speak about marriage being between adults of the opposite sex based on free consent. It is an oxymoron. You say we shall not discriminate on any ground including the ground of sex but then go ahead and prescribe the right to found a family based on sex.
So it is actually doing what it is trying to prevent?

Yes. But it doesn’t say that you cannot get married to someone of the same sex. It doesn’t prohibit, it prescribes a right. In law-school you learn that you must harmonize the constitution and understand its spirit and the context in which it was written. If you look at the constitution in harmony you realize it is not anti-gay, the question of same-sex marriage is not discriminatory per se, it reveals a gap. The only way to make the protection of queer people a reality is through jurisdiction interpretations. That is what we are doing.

Queer people were viewed as free spirits in pre-colonial african societies

Let’s talk about widespread anti-gay propaganda that homosexuality is something un-African. What are your thoughts on that?

African societies had a lot of traditional expressions of sexuality that were divergent and not necessarily heterosexual. Often they were people who used divinity from the ancestors and the creators to serve their communities, bringing healing not harm, and preaching love, not hatred and guilt.
Did they have specific roles in the different African societies?

They were viewed as free spirits, which were not conforming. There was a different way for every community to include non-conformers. The common thread is that there was no community that punished, killed or sent them to jail. No shame or stigma. Everyone had a fitting role in society, so there was no room for out casting someone. Sometimes I wish I was born two hundred years ago, I think, I would have thrived and served better than now. Now we are serving under the choking arm of a copy-pasted system that does not allow us to thrive. Criminal sanctions, societal prejudices, brain-washed peoples’ understanding of where we are coming from as a people. There have been a lot of distortions of the truth and there is the need to remove these distortions in a way that honors and respects both the oppressor and the oppressed.

One problem with that is accessing this knowledge of pre-colonial African societies, isn’t it?

Our curriculum was dictated by the British, and it stayed with us when they left. We are not taught about other African communities but we are taught the history of Europe, and how Europe came to be, and how we should aspire to be like them. Victorian values were imposed on us and they brought the element of shame and stigma to sexuality as well as pride and respectability. Those values introduced certain hierarchies with the heterosexual male on top. Up to now we teach children in primary school - using universal tax money - in social education and ethics that homosexuality is a social deviance. In the Kenya National Certificate of Secondary Education examinations in 2010 we asked students to give reasons why Kenyans are united against homosexuality. We are institutionalizing and owning homophobia using borrowed systems.
Why did colonial rule need to marginalize everyone who didn’t fit into a heterosexist worldview?

All our laws were borrowed from the British colonial system in India. The lessons they had learnt there about creating a nation was to break all ethnic groups apart and also to break their spiritualities and demonize them. In Kenya that worked perfectly well and the homogenization was successful to the extent of destroying or displacing the role of local leaders and local structures. The whole creation of a nationhood, did not necessarily come and say that you are either gay or straight, but it came and said, that if you don’t conform to the political economy of heterosexism then you are an outsider, you are illegal, and you are not part, you are not helping in creating this nationhood. I guess this is what we carried forward up to now.

“We are mature as a democracy to have that conversation”

What are some of the victories that the queer movement in Kenya has had in the last years?

We have successfully occupied different public spaces with openly queer events. We had a lesbian judge appointed in our high court. We have had people like Binyavanga coming out. When people like him come out, it really helps remove the stigma and shame associated with the stereotype that was created by the media that gays are unemployed diseased sex perverts who sell themselves. We also managed to get allies in the mainstream organizing for social justice through participation in civic struggles like Occupy Parliament where we all got arrested and are still facing trumped up charges. We have managed to get to public media and tell our stories on Citizen TV, K24 and KTN. There we could speak about what it is like being a lawyer, an uncle, someone who has a family and at the same time being queer in this country that criminalises the expression of queer love. As a community we have managed to get the judiciary to listen to our cases without them being thrown out for lack of merit or a technicality. Like Richard Muasya, Nthungi and Audrey Mbugua. The very act of judiciary reasoning on this matter, as a valid equality matter is quite telling of where our jurisprudence is going within this democracy.
How is that affecting the general society?

I would say we are mature as a democracy to have that conversation. What I have seen from Kenyans is that they have refused to be hoodwinked into applying universal religions in our private sexual expressions. Kenyans have been able to see the hypocrisy behind this sort of anti-gay propaganda. Social change doesn’t come in a day, but what is encouraging is that it is very incrementally going there, slowly but surely

Thank you for the interview!

Eric Gitari is the Executive Director of the National Gay and Lesbian Human Rights Commission, Kenya (NGLHRC). He has previously worked in different Human Rights and Social Justice areas, for example with the Kenya Human Rights Commission (KHRC), the Center for Rights Education and Awareness (CREAW) and with HIAS Africa.

He has been actively involved in doing the groundwork that led to the adoption by the African Commission on Human and Peoples’ Rights of a first resolution condemning violence based on sexual orientation and gender identity. Eric Gitari has co-authored a major report on the lived experience of LGBTIQ persons in Kenya: The Outlawed Amongst Us. He has has spoken out on Kenyan and international television, was a speaker at the International Bar Association (IBA), UCLA School of Law, Columbia and Howard Universities. He is a member of the IBA LGBTIQ committee and sits in boards of various organizations in Kenya.

He loves writing poetry, carpentry, cycling, sky watching and hitch hiking. He lives with his partner in Nairobi.