Chief Justice Willy Mutunga has given impetus to gay activists after saying that the Supreme Court will rule on the controversial issue of gay rights and abortion.
Speaking in Washington during a visit, Mutunga said that courts would not be compromised and will ensure its independence will continue despite the Old Guard’s resistance to reform.
According to activists, this is second time that the CJ has hinted that the battle for gay rights would be best fought at the Supreme Court.
In early May, Mutunga added his voice to a controversial report by the Kenya National Commission on Human Rights (KNCHR) that called for decriminalization of same sex saying, “There are varying interpretations on this,” and added: “Let Kenyans go to Court to seek an interpretation of the Constitution.”
Mutunga said only the Supreme Court could end anxiety caused by the KNCHR report, which supported decriminalization of same sex persons and sex work.
Mutunga also said the Supreme Court if asked, would shed light on same sex marriage, a move activists say is likely to be in favorable of them.
According to Eric Gitari, from the National Gay and Lesbian Human Rights Commission, an interpretation at the Supreme court would interpret the laws ‘liberally.’
‘The courts are empowered by the same Constitution to interpret it in liberal ways that seek to expand and not limit the enjoyment of rights. This leaves much work to be done by the community in litigation,’ he said.
‘The Constitution of Kenya does not recognize morality and religion as yardsticks of law making; the Constitution states in Article 19 that it seeks to realize the full potential of all human beings, to preserve dignity, and that rights and freedoms are not granted by the state; they belong to every individual by virtue of being human’ he added.
Mutunga said that even in the face of potentially violent opposition “we shall not relent”. He said his message to Kenyans would always be that “justice is not for sale”.
Some powerful political and business interests, which he did not name, are also resisting reforms, Mutunga told an audience of US policy makers, academics and lobbyists.
He noted that the religious section of civil society was opposed to the Constitution and his appointment as Chief Justice.
He described the anti-gay and anti-abortion lobby group, National Conservative Forum (NCF) as “a front for these forces”.
The NCF, according to The Star, is intent on ‘launching a massive attack on the Judiciary and the CJ to wear out his credibility and that of the Judiciary.’
Those in its ranks who accuse reformers of practising judicial activism ‘obviously haven’t read the Constitution because it demands we be activists,’ Mutunga said.
During their last workshop, the NCF, are said to have launched a scathing attack on the Judiciary for advancing a ‘foreign agenda.’
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