Justice Katwa Kigen’s remarks during his interview for Supreme Court judge appointment ignited debate on same-sex marriage in Kenya.
Speaking at the Milimani Law Courts, Katwa drew a contrasting legal interpretations of Article 45 of the Constitution.
He was questioned about same-sex relationships and how he would interpret constitutional provisions on marriage and non- discrimination.
The exchange has now drawn attention to differing interpretations of constitutional provisions regarding whether they explicitly define or limit marriage.
Kigen’s Remarks During Vetting
Appearing before the panel for consideration as a Supreme Court judge led by Chief Justice Martha Koome, Katwa addressed questions on the legal status of marriage under Kenyan law.
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In his response, he stated that under the Kenyan constitution, same sex marriage is prohibited and that it does not explicitly exclude the possibility of same-sex families.
“The Constitution prohibits same-sex marriage. However, it inherently acknowledges that you can have a family of same sex,” said Katwa.
According to the Kenyan constitution, Article 45 provides for the recognition of the family as the natural and fundamental unit of society.
Kigen’s interpretation suggested that while marriage is constitutionally framed within opposite-sex unions, the broader concept of family may still extend beyond that definition.
He emphasized a distinction between marriage as a legal institution and family as a social and constitutional unit, arguing that the Constitution’s wording restricts marriage but does not fully exclude recognition of other family forms.
Mutua’s Constitutional Interpretation of Same Sex Marriage
Commenting on the discussion, Legal scholar Makau Mutua offered a contrasting view rooted in textual interpretation of the Constitution.
According to Mutua, Article 45 does not prohibit same sex anywhere. He argues that drafters wanted to legalize same sex marriage, but they failed to interpret well in understanding language.
“Folks may not be happy with Section 45 of the 2010 Constitution of Kenya on family and marriage. Article 45 (2) explicitly PERMITS marriage by persons of the opposite sex, or gender, BUT nowhere does Article 45 explicitly PROHIBIT same-sex marriages or marriage by persons of the same gender. If the drafters intended to prohibit same sex marriages, they failed to so state in clear and unambiguous language. The Constitution appears to have left that issue for interpretation by the courts, or legislation,” said Mutua.
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Legal Debate on Constitutional Interpretation
Under the Kenyan Law, Same-sex relationship remains criminalized in Kenya under Sections 162 and 165 of the penal code.
According to Article 45 of the Constitution, a family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.
Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.
In April 2023, Homabay Town Member of Parliament Peter Kaluma proposed a bill that would criminalize same-sex relationships, and the bill has not been tabled in the national assembly.
