In common with many of my countrymen, I found the recent wedding in London between two homosexual Kenyans quite disturbing. For very different reasons though. Many condemned the ceremony itself, with some even calling for the dreaded Mungiki to take vengeance on the two for allegedly besmirching the name of the House of Mumbi. Nominated MP and Muslim leader Sheikh Mohammed Dor was typical, declaring that the Quran, Bible and Hindu scriptures detest such unions. “It should be discouraged by all means. It is un-African and against our traditions”. Asking that the government to take a stand on moral issues, Sheikh Dor said if nothing is done, more will follow the example of the two men. Mr Otiende Amolo, a member of the Committee of Experts on Constitutional Review, declared that if homosexual and lesbians’ rights were included in the draft, “a majority of Kenyans [would] reject [it] during the forthcoming referendum”.
I, on the other hand, was saddened that these two citizens were not allowed to celebrate their union in their homeland. In fact, the very act of consummation would have landed them behind bars (and that’s assuming they were able to escape the blood-thirsty mob). It led me to ask a series of questions. What gives society the right to determine what two consenting adults may or may not do in the privacy of their own home? Since there was no victim of any kind, no coercion, and nobody was harmed, shouldn’t free citizens, in such circumstances, have the right to do as they please? What does it mean to “include gay and lesbian rights” in the constitution? Is it necessary for us to have language that enumerates each and every right that a citizen may exercise? In a free and just society, what rights are reserved to the individual and which to the state?
Well, let’s start with the question of why we need the state at all. In a natural state, all men, just like animals, are absolutely free to do as they wish, guided only by their instincts. However, the law of the jungle respects only might and does not necessarily foster security or justice. By acting together in civil society and binding ourselves to its laws, we pass from the natural state to a civil state, substituting justice for instinct and right for might. Natural independence is given up in favour of civil liberty, the former being guaranteed only by the individual’s might while the latter is guaranteed by the collective power of the community. This arrangement, what 18th century French philosopher Jean Jacques Rousseau referred to as The Social Contract, substitutes legal equality for natural inequalities in strength and intelligence evident among men.
We become part of a corporate body politic, composed of as many members as there are votes, in which each person in giving himself to all in general, gives himself to no one in particular. There is no member from whom he doesn’t acquire the same rights he himself gives up to others. It is this public person, which is made up of the unification of many persons, that we call the state. The individuals within it are individually known as citizens and they all share equally in the sovereign power and are equally subject to its laws. The state itself is therefore formed for the common good as defined by the general will of the governed. Since the natural, some might say God-given, rights have been relinquished in favour of civil rights, the state now draws its legitimacy not from a higher being, but from its subjects, the people. It is, by definition, secular.
The common good being common to all, there is no question of sacrificing one person or group in the interest of another. Rather, since the state is the result of a negotiation by different interests, it is the common points of agreement that constitute common good. The contemporary ethicist, John Rawls, defines it as "certain general conditions that are...equally to everyone's advantage". Common good is thus a confluence of interests, not moral values or traditions. The latter are important only in as much as they influence an individual’s sense of where his interests lie. At the state level, however, the discussion is only informed by interests. Far from enforcing a moral code, the only thing the state is committed to is the pursuit of common interests through the creation of social systems, institutions, and environments which work in a manner that benefits all persons without elevating the interests of one group over those of another.
Rousseau defined the legitimate political set up as one which “will defend and protect with the whole common force, the person and goods of each associate and in which each, while uniting himself with all, may still obey himself alone and remain as free as before.” Therefore, though in the civil context we give up our absolute natural freedom, in reality we give it up only to the extent that is necessary for the protection of the common good. Whatever is left over is retained by the individual. Crucially, the delegation of specific powers to the state must be done so expressly while, at the same time, any enumeration of civil rights (as in a Bill of Rights) is not to be construed as a limitation on other rights retained by the people. This is the doctrine of limited government.
In delegating power to the government, any decision to alienate or restrict the individual’s freedom must be accompanied by a compelling reason as to why common interest demands it. As John Stuart Mill stated in his 1859 essay, On Liberty: "The only purpose for which power can be rightly exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his own mind and body, the individual is sovereign."
Now let’s apply these principles of just governance to the controversy over homosexual rights. It is immediately clear that there is no requirement to spell these out in the Constitution. It is just as apparent that having a large majority that thinks that homosexuality and homosexual marriage is distasteful and to be discouraged doesn’t mean that the forces of law and government should proclaim it illegal and threaten all offenders with prison terms or even death. That is not democracy, as many would like to believe, but rather the tyranny of the majority.
Since obviously no common interest is injured by the consensual union of two men or two women, it would be absurd to suggest that such conduct be expressly outlawed. All being united in one corporate body, it is impossible to attack one group without attacking all and an attack on any person’s rights is an infringement of the rights of all. In the long run the entire society is bound to suffer. An example of what would follow is the Anti-homosexuality bill tabled in Uganda’s Parliament on October 14, 2009. If passed in its current form, the bill would punish parents for not denouncing their gay kids and teachers for not reporting on them. Landlords would not be able to rent out their premises to persons of their choosing, doctors would be compelled to disregard the Hippocratic oath and religious leaders prevented from ministering to the needs of their flock. How any of this promotes societal welfare or the common good is beyond me.
Similarly, around the world the criminalization and interdiction of prostitution (another consensual transaction between adults) creates a situation where women and, increasingly children, are exploited by criminal gangs engaged in a thriving yet unregulated industry. The misguided global War on Drugs (an assault on the individual’s right to get high) also achieves little in terms of reduced drug-taking yet incurs huge financial and material costs for society. Not only do these legal bans have the effect of turning a huge number of otherwise law-abiding citizens into criminals (the incarceration rate for black Americans exceeds that in the Soviet Union at the peak of the Gulag), they drive the trades underground, away from the reach of government regulators. They also foster a culture of violence since disputes between drug dealers cannot be referenced to courts for adjudication.
Another consequence of the bans is it has made trafficking a lucrative enterprise for those willing to take the associated risks, creating vast amounts of tax-free wealth primarily for ruthless and blood-thirsty criminal gangs. These funds are then used to corrupt police and legislatures and to maintain violent insurgencies in much the same way proceeds from “blood diamonds” are used in Africa. In February, the Latin American Commission on Drugs and Democracy, a group headed by three former presidents—Fernando Henrique Cardoso of Brazil, César Gaviria of Colombia and Ernesto Zedillo of Mexico—published a report arguing that the violent crime and corruption generated by drug prohibition is undermining democracy and that the drug war has “failed”. Currently, narcodollars are financing rebellions across the world and destabilizing countries like Mexico, Colombia and Afghanistan.
Now contrast this with the results of the more enlightened policy on tobacco. While the dangers of smoking have been acknowledged for over 30 years, governments have not sought to deal with the vice through bans. Instead, they have concentrated their efforts on public education with the result that smoking rates in the West are falling. Because the industry is legal, we can regulate the contents of cigarettes, whom they are advertised and sold to, and where one may or may not light up. Most importantly, there is no violence associated with the production and sale of cigarettes.
If these other trades were legal, then they too could be regulated and taxed. Children and minors would be protected by legislation requiring a minimum age; prostitutes’ earnings would also be protected from the predation of pimps. Importantly, counselling and help could be offered to prostitutes wishing to leave the profession, and to drug addicts willing to change. As it is now, the law treats them as criminals. Such aid could be easily funded by the taxes levied on the legal enterprises engaging in these ventures.
A final example of what happens when the government loses sight of its objective is the ban on abortions. If, for the sake of argument, we grant that abortions are not in the common interest, then the question for the state (which unlike the church answers to the citizenry and not God), should be this: What policy would lead to the least number of abortions? Opponents of abortion tend instinctively to favour discouraging it with as many legal restrictions as possible. What does the evidence show? Is this the best route to take?
According to a 1995 study, approximately 26 million legal and 20 million illegal abortions were performed worldwide in 1995, resulting in a worldwide abortion rate of 35 per 1,000 women aged 15–44. Among the subregions of the world, Eastern Europe had the highest abortion rate (90 per 1,000) and Western Europe the lowest rate (11 per 1,000). Among countries where abortion is legal without restriction as to reason, the highest abortion rate, 83 per 1,000, was reported for Vietnam and the lowest, seven per 1,000, for Belgium and the Netherlands. Abortion rates are no lower overall in areas where abortion is generally restricted by law (and where many abortions are performed under unsafe conditions) than in areas where abortion is legally permitted.
More recently, a report by the Guttmacher Institute, a pro-choice think-tank, suggests that the number of abortions is declining, particularly in countries with legal regimes. But the number of illegal abortions is staying steady. These backstreet procedures kill an estimated 70,000 women each year.
As the evidence amply demonstrates, legalisation does not lead to a higher incidence of abortion while the current policy of banning the procedure is killing and maiming thousands of women. If our aim is to reduce the number of abortions, and protect our women, then criminalising the procedure is definitely not the way to go. Better we try what works. That means empowering women to make free choices concerning their own bodies, as well as providing sex education including information on reproductive health and contraception.
From the above, it is abundantly clear that when governments and societies breach the social contract they have with their citizens, no good comes of it. Individuals and groups have a right to their opinions and beliefs. There is absolutely no compulsion for anyone to participate in or even approve of any of these acts. If you don’t like it, don’t do it. But that doesn’t give you the right to impose on someone else.
The late US Supreme Court Justice Harry Blackmun said: "A necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices” adding that “we should be especially sensitive to the rights of those whose choices upset the majority”. In this, he was echoing a famous argument by another late Supreme Court Justice Oliver Wendell Holmes Jr. who stated: "If there is any principle … that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate." Some may prefer that we ignore present temporal realities for the sake of a future spiritual salvation. That, however, is a luxury society and the government can ill afford.