A counter-majoritarian dilemma? Interrogating the decisions of Kenya’s Superior Courts on sexual minorities

Abstract

Before promulgating the Constitution of Kenya in 2010, the process was marked by controversies over sexual minority rights. Specifically, the religious elites and culturalists opposed it, fearing that the new Constitution would promote LGBTIQ rights. Some proponents of the new Constitution contended that it safeguarded majoritarian values, which are assumed to be anti-LGBTIQ rights. This pre-constitutional promulgation debacle raises three key questions. The first question is whether Kenya’s transformative Constitution protects LGBTIQ rights, and if so, to what extent? The second question is whether it creates a counter-majoritarian dilemma in adjudicating sexual minority rights. The third question is whether sexual minority rights can be fully realised within Kenya’s constitutional democracy in the face of majoritarian intolerance. This paper explores these questions by analysing six decisions concerning the rights of sexual minorities from Kenya’s Superior Courts. As doctrinal legal research, the paper relies on primary data from sources, including the Constitution, case law, and statutes. It also draws from secondary data from wide sources, including published papers and books. It finds that, like all other rights, the Constitution of Kenya fully protects the rights of sexual minorities to the extent that limitations are legally justifiable, legitimate, and necessary. It also finds that, in its architecture, the Constitution of Kenya is counter-majoritarian in that it protects vulnerable and minority members of society. Similarly, a counter-majoritarian dilemma has not emerged in the judicialization of sexual minorities, unless Parliament enacts anti-sexual minority legislation, which again must pass constitutional muster.