A friend asked me to lead a discussion about Kenya’s current Family Protection Bill (2023), so I’m using this space to get my thoughts in some kind of order.
i.
In 2014, Kenya’s Republican Liberty Party introduced a draft Anti-Homosexuality Bill (2014) in parliament.
In 2023, Member of Parliament George Peter Kaluma introduced the Family Protection Act (2023) in parliament.1
ii.
Objectives:
The Principal object of this Bill is to establish a comprehensive legislation to protect the traditional family by prohibiting any form of sexual relations between persons of the same sex; and the promotion or recognition of such relations in public institutions and other places with the support of the government in Kenya or outside the country.
—Anti-Homosexuality Bill, 2014
An Act of Parliament to provide for the protection of the family in furtherance of Article 45 of the Constitution, to prohibit homosexuality and same sex marriage, to prohibit unnatural sexual acts and related activities and to provide for the regulation of activities that seek to advance, advocate, promote or fund homosexuality and unnatural sexual acts and for connected purposes.
—The Family Protection Bill, 2023
iii.
The 2014 bill created some discussion, but it went nowhere.2
When asked about rights for queer people, the president declared it a “non-issue.”3 There are many ways to read this statement. It might be that the president declared queer and trans* people as non-issues, disposable, waste. Or, it might be that he declared discussions about queer and trans*4 rights as non-issues, not relevant, not on the table, do not look too closely. Or it might be that he declared queer and trans* rights as non-issues because they were already covered by Kenya’s Constitution, in the section on rights, a very charitable interpretation that some activists have used. It might be some combination of all three.
iv.
How did we get here?
It is now standard to claim that colonialism brought homophobia to Africa. We can be more precise: the invention of the colonial state, which includes formulating laws to govern it, codified “unnatural acts” by naming them, even through euphemism, and creating penalties.
Put more simply: it’s very likely that a range of groups in Kenya had different views about same-sex attraction, same-sex erotics, and diverse gender practices. It’s very likely that some groups embraced all or some of these—you can embrace gender diversity without embracing erotic diversity, and vice-versa. The colonial state created a blanket law that applied to everyone.
(Let me defer, for a moment, the very necessary discussion about the quotidian impress of codified law. Stuff in the law might not affect daily life for many people, especially those who are not in intimate proximity with the police. During the colonial period, many people did not have intimate proximity with the police.5)
I am not a fan of origin stories. Except so-called traditional myths. Those are fun.
While it’s true the colonial state codified anti-sodomy into law, that does not explain how we got here now.
v.
In 2006, Kenya passed the Sexual Offences Act (2005). In the years leading up to the bill being enacted into law, Kenya’s parliament had sustained discussions about sex, sexuality, consent, bodily autonomy, tradition, and gender.6 As far as I know, it was the first time parliament had such sustained discussions.7
These discussions created profound anxieties around intimate matters—or, as Kenyans would put it, matters intimate. Since 2006, these anxieties have played out in a series of laws being passed to govern intimate relations.
These laws include:
The HIV and AIDS Prevention and Control Act (2006, revised 2022)8
Prohibition of Female Genital Mutilation Act (2011)9
Matrimonial Property Act (2013)
Marriage Act (2014)10
Protection Against Domestic Violence Act (2015, revised 2022)
Health Act (2017, revised 2022)
The Early Childhood Education Act (2021)
The Children Act (2022)
Other laws about land and inheritance are also relevant, but I shall not list them. One might argue that there is no law that does not touch on intimate relations. But that is not my task here. I will leave that to ambitious graduate students.
Many of these laws can be traced to parliamentary discussions in 2004 and 2005.
vi.
Many of these laws are united in defining the relations between and among sex, gender, and sexuality. So, let me turn to definitions for a moment.
The 2014 draft Anti-Homosexuality Bill defines the terms bisexual (“a person who is sexually attracted to both males and females”); gay (“a male person who engages in sexual intimacy with another person of the same sex”); gender (“male or female”); homosexual (“a person who engages or attempts to engage in same gender sexual activity”); homosexuality (“same gender or same sex sexual acts”); lesbian (“a female who engages in sexual intimacy with another female”); sexual organ (“vagina, penis or any artificial sexual contraption”); sodomy (anal sex, oral and bestiality); and touching (“touching with any part of the body”; “amounting to penetration of any sexual organ, anus or mouth”).
The 2023 bill shifts directions very strategically. The terms bisexual, gay, homosexual, and lesbian do not appear in the document.11 Instead, the focus is on the endangered family in need of protection.
The 2023 bill defines the term family (“the primary unit of society comprising persons united by ties of marriage between a man and a woman, by ties of blood or ties of adoption; interacting with each other in their respective social positions as spouses, parents, children or siblings); female person (“a person born with female reproductive organs”); intersex person (“a person born with physical, hormonal or genetic features that are neither wholly female nor wholly male; or that are a combination of female and male”); male person (“a person born with the male reproductive organs”); marriage (“voluntary union of a man and a woman whether in a monogamous or polygamous union as defined under the Marriage Act”); sex (“the biological state of being male or female as physically determined and assigned at birth and in respect of intersex persons as medically determined and assigned at birth and excludes sexual orientation and gender identity”; vulnerable person (“a person who is in need of special protection [by the state and its agents] because of age, sex, illness, physical or mental disability, social or personal status including a person with disability, victim of sex-based violence, illiterate person or elderly person”).
Here, let me dwell on one defintion in the 2023 bill.
victim of the offence means— (a) a child against whom the offence of capital homosexuality has been committed; (b) a person suffering from mental illness or any other form of disability against whom the offence of capital homosexuality has been committed; or (c) any other person against whom the offence of homosexuality or capital homosexuality was committed—(i) by means of threats, force, fear of bodily harm, duress, undue influence, through misrepresentation as to the nature of the act or intimidation of any kind; or (ii) while unconscious or in an altered state of consciousness due to the influence of medicine, drugs, alcohol or any other substance that impaired his or her judgment
In the list of definitions that open the act—a section titled Interpretation in Kenya’s laws—this is the only place where homosexuality is mentioned. It is always mentioned as a crime against a vulnerable person. Here, homosexuality is always a practice, never an identity.12
In fact, one of the most striking aspects of the 2023 bill is that bisexuals, gays, and lesbians are no longer people. They do not exist. Instead, we have criminals who commit the crime of homosexuality.
vii.
If homophobia was the driving force behind the 2014 bill, transphobia is the guiding logic of this 2023 bill. It drives how the terms male and female are defined and used; it drives the force given to sex defined at birth and by physical examination, skirting scientific questions about chromosomes and hormones; it assigns the medical establishment and the state the power to describe, define, and limit a person’s gender and sex, taking away any right to choose and decide. The states decides who you are.
And, as with the words bisexual, gay, and lesbian, the terms transgender and transsexual do not appear in this document.
viii.
It might seem that I am making too much about the absent terms. Let me stay with that for a moment.
The 2014 bill attempted to do too much. It tried to educate legislators by defining terms. It tried to shock legislators by describing the types of sex people have with each other. It tried to mobilize disgust and contempt to build consensus among parliamentarians.
But in naming people—bisexual, gay, lesbian—the bill offered a kind of legibility that activists and NGOs could latch on to. “This bill wants to harm lesbians” is powerful rhetoric.
In contrast, the 2023 bill appeals to common sense. “We all know what male and female mean.” “We all know homosexuality is a crime, not an identity.” “We all agree that the family is important and should be protected.”
ix.
My favourite definition of heteronormativity is by Lauren Berlant and Michael Warner:
By heteronormativity we mean the institutions, structures of understanding, and practical orientations that make heterosexuality seem not only coherent-that is, organized as a sexuality-but also privileged. Its coherence is always provisional, and its privilege can take several (sometimes contradictory) forms: unmarked, as the basic idiom of the personal and the social; or marked as a natural state; or projected as an ideal or moral accomplishment. It consists less of norms that could be summarized as a body of doctrine than of a sense of rightness produced in contradictory manifestations-often unconscious, immanent to practice or to institutions. Contexts that have little visible relation to sex practice, such as life narrative and generational identity, can be heteronormative in this sense, while in other contexts forms of sex between men and women might not be heteronormative. Hetero-normativity is thus a concept distinct from heterosexuality. (my emphasis)
Heteronormativity is a “sense of rightness,” and those parliamentarians who engage this bill, who are invited to do so, are welcomed by this sense of rightness, this common sense of rightness. Surely, we all know children are born as boys or girls, and, sometimes, intersex. Surely, we all know sex and gender are natural—we can see them. Surely, we all know that the family is the foundation of the nation—that is even in the constitution. Surely, we all know that marriage is the heart of stability. Do we not have a Marriage Act?
x.
A few summative thoughts.
The 2023 bill is much cleverer than the 2014 one. In general, anti-homosexuality bills in Africa are much cleverer now than they were a decade ago. Drafters have learned how to shape their rhetoric and how to mobilize feeling. There is much to learn in comparing different versions of anti-homosexuality and pro-family laws on the continent.
Elsewhere, I have argued that such bills—and the process of deliberating about them—create coalitions among groups who may otherwise despise each other. The coalitions may be shortlived, but that doesn’t matter so long as the bills are enacted into law.
I continue to think that the debates such bills occasion in parliament—debates which then travel through traditional and social media—endanger vulnerable people and make more people vulnerable. Harm occurs whether or not the bills are enacted into law.
The common sense at work in this 2023 bill is especially dangerous for those with diverse practices of gendered and embodied expression.
ix.
It is not enough to know that Kenya’s parliament is contemplating an anti-trans* and anti-queer bill. It’s important to trace the rhetorical strategies used to create the bill. It’s important to trace how the bill gathers people: the appeals to common sense and the sense of heteronormative rightness that subtend the bill.
I am being hyperbolic. The bill exists and has circulated, but is listed nowhere on parliament’s Bill Tracker. I have no clue what that means.
It might be that it went nowhere because of the president’s ALLEGED sexuality. The word ALLEGED protects me, right?
https://www.the-star.co.ke/news/2018-04-20-gay-rights-is-non-issue-in-kenya-uhuru-says-during-cnn-interview/. President Kenyatta first described gay rights as a “non-issue” during President Obama’s visit in 2015. https://nation.africa/kenya/news/gay-rights-non-issue-kenyan-president-uhuru-kenyatta-says-ahead-of-obama-visit-1113086
I learn trans* (trans asterisk) from Christina Sharpe. She writes,
I want to think Trans* in a variety of ways that try to get at something about or toward the range of trans*formations enacted on and by Black bodies. The asterisk after a word functions as the wildcard, and I am thinking the trans* in the way; as a means to mark the ways the slave and the Black occupy what Saidiya Hartman calls the “position of the unthought.” . . . The asterisk after the prefix “trans” holds the place open for thinking (from and into that position). It speaks, as well, to a range of embodied experiences called gender and to Euro-Western gender’s dismantling, its inability to hold in/on Black flesh. The asterisk speaks to a range of configurations of Black being that take the form of translation, transatlantic, transgression, transgender, transformation, transmogrification, transcontinental, transfixed, trans-Mediterranean, transubstantiation (by which process we might understand the making of bodies into flesh and then into fungible commodities while retaining the appearance of flesh and blood), transmigration, and more. (In the Wake, p. 30)
When I searched for homosexuality—and synonyms and euphemisms—in the Kenya National Archives focusing on the early colonial period (1895-1935 or so) many years ago, I found very little. The one record I remember distinctly mentioned homosexual acts in prison. As far as I remember, the prisoners had not been imprisoned for their sexual acts. The sexual acts were simply noted by the colonial administrators.
For more on these discussions, see Onyango-Ouma, Washington, Njoki Ndung'u, Nancy Baraza, and Harriet Birungi. 2009. "The making of the Kenya sexual offenses act, 2006: Behind the scenes." Nairobi: Kwani Trust. https://knowledgecommons.popcouncil.org/departments_sbsr-rh/1164/
There’s a strong tendency for U.S. scholars and activists to argue that homophobia is being exported to Africa by U.S. evangelicals. While evangelical money has supported anti-homosexual legislation in Nigeria and Uganda and is probably at work in Kenya, I do not like this argument, as it positions African as dupes. I start with the 2006 law to track a Kenyan genealogy for the current situation.
See this definition: "partner" means a spouse or a person with whom another person is living in a domestic and sexual relationship.
Despite this definition of “partner,” the law prioritizes “the family as the basic social unit” (4.2.b)
See this definition: "sexual reassignment procedure" means any surgical procedure that is performed for the purposes of altering (whether wholly or partly) the genital appearance of a person to the genital appearance (as nearly as practicable) of a person of the opposite sex
3.1 Marriage is the voluntary union of a man and woman whether in a monogamous or polygamous union. (Marriage Act, 2014). Same-sex and Same-gender marriages are not listed under prohibited marriages in the Marriage Act.
The term “homosexuality” appears, but not the term homosexual.
I have no attachment to identity as a frame or practice. I continue to learn from Eve Sedgwick:
“Queer” seems to hinge much more radically and explicitly on a person’s undertaking particular, performative acts of experimental self-perception and filiation. A hypothesis worth making explicit: that there are important senses in which “queer” can signify only when attached to the first person. One possible corollary: that what it takes —all it takes—to make the description “queer” a true one is the impulsion to use it in the first person. (“Queer and Now,” p. 8)
In reading Leanne Betasamosake Simpson and Joseph M. Pierce, I have learned to think about relation. Queer and Trans* not as practices of selfhood, but as forms of relation. Samuel Delany points to this when he says that “coming out” used to describe one’s first sexual experience, not one’s disclosure of identity (in “Coming/Out”). I worry that so much of contemporary identity-based discourse and practices prioritize the autonomous I engaged in epiphany over the cultivation of relation with others.
thank you so much for this. as always, it's wonderful to get to hear you think through knotty things! and for me, here in the u.s., it's so helpful to my understanding of the versions of this that're being floated or enacted here to have your clarity on the versions you're facing.
i also wanted to share, in case it's useful, a rather cranky thing i wrote a decade ago about the history of the * in "trans*", which people were arguing about in some of my online spaces. i have many more thoughts on the prehistory now, since i'm deep in a research project about trans women's [broadly understood] periodicals of the 70s-90s, but i don't think anything in here is inaccurate, just less generous than i'd retrospectively like. anyway, i brought it from tumblr to here a while ago, so this should be a stable link: https://meansof.org/2014/01/03/about-that-asterisk-some-trans-womens-history/
Your next book, I think. Great stuff!