Image Description: A 6-colour (Rainbow) Pride Flag flying in the sky. The rays of the sun are falling on the Flag.
The longstanding ban of same sex intimacy under s 162 a and b , s 165 Kenyan penal code continues to threaten the constitutional guarantee of a right to education for LGBT students. The latest threat comes in the form of a public statement by the Nairobi Education Cabinet secretary, CS Magoha on the 14th of February 2022, alluding to a ban on homosexuals from admission into boarding schools when caught ‘hopping from bed to bed’. This characterisation of homosexual students as deviant and predatory, whether borne out by evidence or not, is not one that is made of heterosexual students caught in similar circumstances. Moreover, the ban would not apply to heterosexual students engaged in similar acts of deviance. Accordingly, the ban would be discriminatory. More specifically it would amount to differential treatment on grounds of sexual orientation.
However, unlike the UK Equality Act 2010, Article 27 of the Kenya constitution 2010 does not expressly provide for sexual orientation as one of its protected characteristics. The attempts to impute such protection under Article 27 (1) as well as the grounds under Article 27(4) failed in Eric Gitari v Attorney General & another  eKLR. The backdrop to this public statement is the legal reality that criminalising of same sex intimacy is punishable by a custodial sentence under the penal code. This remains the default position for any state sanctioned policies against homosexuality in Kenyan schools, particularly at the secondary school level.
Such a ban would most likely be irreconcilable with a guarantee of the ‘right to education under Article 43(1) Kenyan Constitution, achievable through progressive realisation. Some of the standards for this realisation, as set out under Article 53 (1)b, include the provision of free and compulsory basic education. Article 53(1) d further provides that every child has the right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment, and punishment.
The guarantee of a right to free and compulsory education is given effect to by the Basic education Act of 2013, which legislates for education received at early childhood, primary and secondary level, by children under the age of 18. Its guiding principles under paragraphs 4(a) and 4(b) include equitable access for the youth to basic education and equal access to education or institutions. Paragraph (e) further provides for the protection of children against discrimination within or by an institution or an education department on any ground whatsoever. Additionally, s 36(1) prohibits torture, inhuman and degrading treatment in any manner, whether physical or psychological.
Part 11, paragraph 7 of Children’s Act 2001 reaffirms the right to free and compulsory education. Further article 2(6) of the Constitution allows for a confirmation of the extra territorial safeguards of the right under Article 28 of the Convention on the Rights of the Child as well as the International Convention on the Elimination of all forms of Racial Discrimination.
The state’s duty to ensure the progressive realisation of the right to education, especially basic education, is benchmarked by its comprehensive legal protection of the right. This protection guarantees accessibility for all students to a basic level of education in a healthy, conducive learning environment. Not only does a ban on ‘deviant homosexual students’ from admission into boarding schools create a slippery slope into criminalising them, it would also most certainly be retrogressive in light of the commitments undertaken by the Kenyan State to guarantee the right to education.