Difference as transformational
It is ten years since Kenyans promulgated their then new Constitution with much optimism and great expectations. The Constitution of Kenya (2010) held particular significance for persons with disabilities, who had over the years remained unheard and unseen second-class citizens, only deserving of charity from contrived national harambees or from contrite souls on holy days like Christmas, Idd and Diwali.
The repealed Constitution neither protected disabled persons from discrimination nor anticipated that they could stand for elective office. Its infamous Section 34 (c) quite ambiguously provided that for a person to be nominated to stand for a parliamentary seat he had to “… be able to speak and, unless incapacitated by blindness or other physical cause, to read the Swahili and English languages well enough to take an active part in the proceedings of the National Assembly”. This provision, it seemed, did not countenance that a blind or physically disabled person could read English or Swahili; and indeed at least one blind candidate’s application to vie for a parliamentary seat was declined on that basis. In similar fashion, a judicial panel declined to employ a blind lawyer as a magistrate on the basis that a sightless person could not discern the demeanour of an accused or a witness. Again, society’s messaging was that demeanour cannot be apparent to non-sighted persons.
The individual’s right to be different, which was originally applied in relation to race, has particular resonance for persons with disabilities, who have found it necessary to stake a claim to their personhood regardless of the diverse ways in which their bodies may be impaired. Persons with disabilities indeed contend that it is society, rather than their bodies, which makes them disabled. It is not the disabled person that bears the pathology. It is not the diseased ear, eye, leg or mind that disables; it is society that carries the pathology: it is society that disables by its stigma, prejudice and discrimination.
These claims of a distinct identity are in no way intended to justify discrimination or an “otherness” narrative. In a counterintuitive way, they embody the recognition of disability as an element of human diversity with the consequent clarion call for the recognition of the particular contributions of persons with disabilities to society while eschewing stereotypes, prejudices and harmful practices.
It is in this sense that the 2010 constitution guaranteed respect for difference of persons with disabilities as part of human diversity. A number of elements constituted the distinct identities established in the constitution:
First, the constitution recognised that persons with disabilities were differentiated by their peculiar languages, notably Kenyan Sign Language, which henceforth would be used alongside English and Kiswahili in official forums, such as the National Assembly.
Second, persons with disabilities possessed esoteric communication formats and technologies, such as Braille, which they would use to bypass society’s normative means of communication.
Third, persons with disabilities were denoted as vulnerable members of society whose needs would be addressed especially by State organs and public officers.
Fourth, the State as well as persons were prohibited from direct or indirect discrimination on the basis of disability.
Fifth, the electoral system would ensure fair representation of persons with disabilities and take account of their special needs.
Sixth, persons with disabilities would have specific representation in the National Assembly, Senate and County Assemblies.
Seventh, the values and principles of public service would afford persons with disabilities adequate and equal opportunities for appointment, training and advancement at all levels of the public service.
Finally, the constitution established a corpus of entitlements for persons with disabilities. They were to be treated with dignity; they were to access integrated educational institutions and facilities; they were to have reasonable access to public transport and information; and they were to access materials and devices to overcome constraints arising from their disabilities. T
The State is obligated to ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies would be persons with disabilities. Only in one instance did the constitution give quarter to the status quo by legislating the discrimination of persons with mental disabilities, notably when it provided that persons of unsound mind could neither vote nor stand for elective office.
Yet, the great expectations, as pontificated in the words of the constitution’s Preamble, recognising “… the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”, have a decade later started to lose their shine and indeed they raise more scepticism every time a person who is deaf or blind, or one who has an intellectual, mental or mobility disability, seeks to engage with constitutionally-established norms or institutions.
Why is this so?
The country is confronting at list two dilemmas which undermine the constitutionally-guaranteed respect for difference of persons with disabilities as part of human diversity.
Substantive inequality vs. formal equality
First is what I characterise as the dilemma of demonising substantive equality while sanctifying formal equality. There can be no doubt that the constitution established a conscious fine balance between the imperative of formal equality, on the one hand, and the imperative of substantive equality, on the other. Hence, in respect of formal equality, Article 27 (1) of the constitution provides that “every person is equal before the law and has the right to equal protection and equal benefit of the law.” Then sub-article 2 legislates substantive equality with its provision that “equality includes the full and equal enjoyment of all rights and fundamental freedoms”. In this sense, the constitution recognises that not every distinction or difference in treatment amounts to discrimination.
Indeed, the courts have on occasion been refreshingly articulate in their appreciation of the issues at hand. Take the instance of the 2011 High Court petition of John Kabui Mwai v Kenya National Examinations Council, which affirmed that not all distinctions resulting in differential treatment can properly be said to violate equality rights as envisaged under the constitution. The low point of substantive equality, of course, was the infamous Sessional Paper No. 10 of 1965, whose essence was the directive to invest available scarce resources in parts of the country with high potential to the disadvantage of arid and semi-arid regions.
Yet, a decade after the adoption of a transformative constitution, the philosophy behind substantive equality continues to be misrepresented and lampooned by political elites and interests while the mechanics for implementing substantive equality remain ill-defined and feebly-implemented.
Obfuscation and conflation
Second, we face the dilemma of constitutional revisionism by obfuscation and conflation. As already stated, the constitution asserts the primacy of respect for difference and acceptance of all individuals despite their characteristics or circumstances as part of human diversity. That is why the Bill of Rights includes a specific part that elaborates on certain rights to ensure greater certainty on their application to children, persons with disabilities, youth, minorities and marginalised groups, and older members of society. Yet, far too many laws and judicial and administrative decisions have pushed back on respect for difference by negating the differentiated and distinct constitutionalised identities of persons with disabilities into unrecognisable categories using narratives of obfuscation and conflation.
What do I mean?
The constitution could not be clearer: persons with disabilities may not be discriminated against. Indeed, the constitution mentions persons with disabilities at least 15 times. It is, therefore, astounding that some statutes and institutions go to great lengths to ensure they do not affirm and legitimise disability.
Take the County Governments Act, which makes exactly one very obscure reference to persons with disabilities, quite perversely preferring to use non-affirming euphemisms and waffles, such as “vulnerable persons” and “other identities”. This of course begs the question why Parliament obfuscated the clear identity-based constitutional disability imperative.
Or take the matter of the representation of persons with disabilities in county assemblies. According to Article 177 (c) of the constitution, membership of a county assembly includes “the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament”. The County Governments Act, quite circuitously, provides that the composition of a county assembly includes “six nominated members as contemplated in Article 177(c) of the Constitution”.
It is no wonder that despite the best efforts of persons with disabilities, the courts and indeed the Independent Electoral Boundaries Commission have declined to countenance the quite reasonable proposition that a county assembly devoid of legislators with disabilities cannot be properly (fully and duly) constituted in terms of the constitution. And so while in the last electoral cycle only four county assemblies had no legislators with disabilities, the number of unrepresentative counties has mushroomed to 17 in this electoral cycle. These are Kwale, Kilifi, Taita Taveta, Makueni, Nyandarua, Nyeri, Murang’a, Turkana, West Pokot, Baringo, Laikipia, Nakuru, Narok, Kericho, Bungoma, Busia and Kisii. (Fascinatingly, Migori’s county assembly excelled in the last and present electoral cycles, with four and three assembly members with disabilities, respectively.) Hence, one of the greatest concerns that persons with disabilities have is that the next electoral cycle may herald even fewer legislators with disabilities in county assemblies and in the National Assembly as well.
The other gripe disabled people continue to hold is the fact that Parliament has still not enacted new substantive legislation to replace the Persons with Disabilities Act, whose provisions have long since become anachronistic. The unrealised demand remains the enactment of a new flagship law on disability that takes into account the principles and norms in the constitution and the United Nations Convention on the Rights of Persons with Disabilities, to which Kenya became party in 2008.
Stilling the dirge, awakening mirth
In the meantime, though, lamentations can come far too easy to the wearied ear, eye, foot or indeed mind. Yet, any dirges for persons with disabilities in the past decade have been interspersed with mirth when the constitution has illuminated its great potency for good by giving succour to one or two more citizens with disabilities.
Sign language interpretation on television news, if not on other programming, is now more the norm and less a spectacle. The courts have also provided redress in recognition of difference as an asset rather than a liability that should occasion disadvantage on account of disability. In this regard, take the injustice and indignity suffered by an accused person with intellectual disability. If the court figured you could not understand trial proceedings, you would be detained for an indefinite and indeterminate time at the president’s pleasure even though your guilt was unproven. Now the courts have pronounced that as amounting to cruel, inhuman or degrading treatment.
Or take the discrimination faced by employees with disabilities. Many employees have been dismissed on becoming blind without due consideration for measures which would enable her to continue being a productive employee. And the courts have pushed the envelope that employers must provide reasonable accommodation measures for such employees. Or take women with intellectual disabilities whose right to enjoy consensual sexual intercourse has been questioned by a prudish society. And the courts have said that such persons indeed can enjoy sexual intercourse. Or take the miscarriages of justice which happen when accused deaf persons do not have sign language interpreters – and the courts have ruled in their favour.
A dance of mutual respect in difference
But it is in the arena of social change rather than in the courts or Parliament that persons with disabilities have to join battle against society’s epic ills of stigma, discrimination and absent resources. That indeed is the reason why the core undergraduate course content at the University of Nairobi’s School of Law includes units on disability law.
This is the kernel of the discussion: that unrequited recognition of difference is but the first, albeit significant, step in the journey to ensure full and equal exercise of all human rights by persons with disabilities. Respect for difference is demonstrated where policy, legislative or administrative actions do not demand or assume that persons with disabilities will conform to hegemonic social, economic or indeed political norms.
It should not be disabled persons that should change to fit into existing structures of society; rather, society must modify its social and physical structures to accommodate their full participation in society. All newly graduating law students know that now.
It is in this sense that society must take the hand of disabled persons in the thus far mostly unrequited dance. It is this dance of mutual respect in difference that will hurry along the swansong of stigma, discrimination and resource scarcity.
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The Scourge of the Disposable Diaper in Rural Kenya
By incentivizing manufacturers of disposable diapers, the government has sacrificed the gains made with the banning of plastic carrier bags in 2017 and worsened the problem of plastic pollution throughout the country.
With a million babies born each year, Kenya’s annual diaper consumption is estimated at 800 million pieces. The government considers them “essential items” and has lately been encouraging manufacturing firms to set up shop in the country to supply the East African region. As of June 2021, the country had a total of seven diaper firms which were allowed to import manufacturing materials, largely plastics, duty-free.
However, there has been much less attention paid to where the diapers end up. One group of researchers found that in Kenya, as in many developing countries, “it appears that little information is available regarding handling and the proper disposal of disposable diapers despite a significant rise in usage of such during the last decade by women of child bearing age”.
As a result, diapers are contributing to a dramatic increase in plastic pollution, one that has raised concerns in government and in Kenya’s mainstream media. By 2013, the Department of Public Health was warning that poor disposal of diapers was a leading cause of disease as well as blocked drainage in major urban areas. And the problem is intensifying as diapers become cheaper and mothers in rural Kenya gravitate to them for their convenience. In fact, around the world, disposable diapers represent about 4 per cent of all solid waste and are the third largest contributor to single-use consumer items in landfills.
When my neighbour Esther was expecting her fourth child a few years ago, she took a ride with me into Nakuru town to buy supplies in anticipation of the happy event. On her shopping list were washable nappies. I have since learned that among her peers, Esther is the exception; the vast majority of mothers here have adopted the disposable diaper.
We live on the edge of a small township in Nyandarua County that boasts a health centre complete with a maternity wing. Our local minimarket, a family-run business, stocks most of the diaper brands available in Kenya, from those targeting the young mum living in Nairobi’s leafy suburbs, to those made specifically for the mother who earns a KSh250 daily wage selling her labour to neighbouring farms or ekes out a living selling vegetables or second-hand clothes at our local market. Competition among manufacturers and importers of baby diapers has drastically reduced prices. Local producers have also adapted to the kadogo economy, selling individually wrapped baby diapers for as little as KSh20 apiece.
The Clinical Officer at our health centre informs me that, on average, the maternity wing delivers 250 babies a year. Alice, who runs the minimarket and who is herself a mother of twins, told me that before they were toilet-trained at just over two years old, her bundles of joy were using up to six diapers each per day. The math is very worrying; it will take about 20 generations of Alice’s descendants for the diapers used by her children to decompose. Early 21st-century disposable diapers will finish biodegrading in 2500.
Washable nappies are not a choice for Alice, however. Not unless she is willing to finish a 14-hour day with her hands deep in a bucket of soiled nappies. Alice tells me that, unlike in the past, women employed by families to take care of babies and young children have become accustomed to the convenience of diapers and are no longer willing to take on the additional task of washing soiled cloth nappies.
Our little township borders the Aberdare Forest, which has become a dumping ground for soiled diapers. I became aware of the dumping after I found mounds of used diapers on a piece of fallow land adjacent to my property. Worried that I would soon find myself living next to a growing garbage dump, I determined to find out the source of the dumping. Ours is a small community and my enquiries led me straight to the offending mother who, challenged, complained that her children had not done as they had been told; she normally dumps her used diapers in the forest when she goes to gather firewood, so she told me. A stroll into the forest confirmed that, indeed, our forest was being used as a dumping ground for diapers. One pile had been left so perilously close to the river that come the rains, it would soon add to the growing menace that is river pollution by diapers.
But why was this happening?
A Department of Health official attached to our local health centre told me that the problem was directly linked to inadequate resources and personnel. Solid waste management falls under the Department of Health Services of the Nyandarua County Government. For the 2019/2020 fiscal year, the approved budget allocation “to ensure the controlled disposal of solid waste and human remains” within the entire county of 638,289 people was KSh7,603,000, projected to rise to KSh8 million for the 2021/2022 fiscal year. Nyandarua has four sub-counties: Kinangop, Kipipiri, Ol Joro Orok and Ndaragwa.
Ndaragwa Sub-County covers a total surface area of 653 km² and has four wards: Leshau, Kiriita, Central and Shamata with a total population of approximately 92,626 people. The sub-county is served by one of only three garbage trucks owned by the county government. The truck collects waste from our township once a week and takes it 60 kilometres away to the municipal dump at Ol Kalou, the county capital. However, frequent breakdowns and lack of fuel mean that we can go weeks without having our garbage collected. And since the county government’s budget has not stretched to refuse bins, residents resort to digging pits into which they throw their household waste, consisting mostly of plastic wrapping, plastic bottles, torn shopping bags, and the now ubiquitous disposable face masks. The single-use plastic bags that were banned by the government in 2017 are also sneaking their way back into the environment, used by unscrupulous butchers as packaging. A visit to our local slaughterhouse is enough to put you off your meat; bits of plastic show up in the guts of the carcasses of goats and cows that have been grazing in our public spaces.
The accumulating mounds of rubbish are set alight, releasing toxic fumes into the air. Used diapers, however, are notoriously difficult to burn; you need a lot of kerosene. So where do they end up? In our surrounding environment, of course. Soiled diapers are rolled up and dumped in ditches and on open ground under cover of darkness, to be torn open by stray dogs and picked over by fowl let loose. More fastidious mothers pay people to dispose of them in the bush or, like my neighbour, take them there themselves.
When I asked about the options open to those living in areas without waste collection services, on farms and villages deep in the countryside, the Department of Health official told me that they are encouraged to bury soiled diapers on their land, thus introducing the concept of landfill to individual households. As for the mounds now festering in our forest, the official told me that it would be up to the forestry department to clear up the waste since it had been dumped within their jurisdiction.
A call to the local office of the forest service made it clear that the answer was not that clear-cut; the official I spoke to informed me that the matter had been raised with the local administration through the chief’s office and a solution was awaited. He did not sound hopeful.
Manufacturers of disposable diapers give very clear instructions about how to use them and warn parents to keep the packaging out of the reach of children because of the danger of suffocation. I found only one that specifically urged users not to throw soiled diapers into the toilet but to put them out with the trash instead. Bizarrely, this manufacturer also encouraged the user to return the plastic packaging to the company’s offices in Nairobi. None advised against throwing them out into the environment where they add to the growing volume of human faecal matter and the attendant pathogens. And nor were users encouraged to empty the waste into the toilet before disposing of diapers.
This lack of information means that there is a lack of awareness among the population as to the true cost of opting for disposable diapers; many mothers only see the advantages of using them, complaining only that they are difficult to burn. None that I spoke to knew that their used diapers would take centuries to biodegrade, and that they are polluting our sources of water.
This story is not unique to Nyandarua County, however. Residents in the urban areas of Kisumu County have also taken to disposing soiled diapers in the environment in the dead of night. The situation is no better in Kilifi County where in June 2019 the Chief Officer for Environment and Natural Resources, Mariam Jenneby, called for a total ban on single-use plastics and disposable diapers, saying that they were a major cause of ocean pollution.
Kilifi County’s solid waste management budget for the 2020/2021 fiscal year stood at KSh14,100,000 of which KSh5.1 million was for the purchase of a double-cabin vehicle for “environmental conservation and management extension services”. The rest would go to “fencing and rehabilitating” the Mariakani dumpsite, installing refuse bins in Mariakani municipality and purchasing assorted tools and equipment; no mention is made of recycling. The county has a population of 1,109,735 people (2019) and covers an area of 12,610km² — 2.17 per cent of Kenya’s total surface area.
On the other side of the country, in Kisumu County, whose population stands at 1,155,574 people spread out over an area of 2,086km², the budget allocation for solid waste management for the 2020/2021 financial year was KSh3,190,998, all of it earmarked for the purchase of goods and services; no mention is made of recycling. It is however observed in the document that the objective to “strengthen solid waste management in Kisumu County” has been met, and that effective planning, management and execution of service delivery outcomes are at 100 per cent. The residents of Kisumu tell a somewhat different story, however.
There is no objective reason to believe that the situation of solid waste management in the other 44 counties of Kenya is any different. On the contrary, it would appear that the 2015 National Solid Waste Management Strategy developed by the National Environment Management Authority (NEMA), and whose main guiding principle is “Zero Waste”, remains a dead letter. The short-term goal of the strategy is to “achieve approximately 80% waste recovery (recycling, composting and waste energy) and 20% landfilling in a Sanitary landfill (inert material) by 2030” but as observed above, the budget allocations for Nyandarua, Kisumu and Kilifi do not cater for the cost of recycling.
And while it is a fact that most solid waste is generated in urban areas, disposable diapers have made their way into the rural areas where, as observed, they are playing havoc with the environment.
At its unveiling, the Constitution of Kenya 2010 was hailed as among the most progressive world-wide for addressing issues that are seldom addressed by national law. Indeed, Article 42 of the constitution recognises the right of every person to a clean and healthy environment while Article 69 provides the obligations of the state in this regard that include the obligation to “eliminate processes and activities that are likely to endanger the environment”.
Diaper manufacturers were among the beneficiaries of the decision announced by Treasury Cabinet Secretary Ukur Yattani in his June 2020 budget to remove import duty on inputs in order to boost local manufacturing and create jobs. But even as the government incentivises manufacturers and encourages investment in the production of a highly polluting product, there is no policy in place on how to manage the growing waste resulting from the increased use of disposable diapers.
Barely two decades ago, single-use diapers were alien to the majority of Kenyan mothers; they should have remained so. By incentivising the production and imports of disposable diapers under the guise of creating employment and using the argument that “Baby diapers are essential products and there is a need to supply them at affordable prices,” the government has not only failed in its constitutional obligation to deter activities that are a menace to the environment, but has also needlessly compounded the challenges of solid waste management in the country.
Moreover, Kenya has squandered the reputational capital earned with the 2017 ban on plastic carrier bags. By resisting the introduction of disposable diapers — one of the biggest contributors to plastic waste globally — Kenya could have taken the lead in halting the progression of a disposable diaper pandemic that began in the United States over 70 years ago. Every minute, 300,000 more diapers are released into the environment that could be replaced with compostable nappies, for example. However, the adoption of an alternative to the disposable diaper would require the full commitment of governments and manufacturers.
The second part of Article 69 of the constitution states that “every person has a duty to cooperate with State organs and other persons to protect and conserve the environment. . .” However, both the national government and the county governments have failed to take the lead and it has been left to youthful civil society organizations such as the Kenya Environmental Action Network (KEAN) to raise awareness regarding the polluting effects of the disposable diaper. In September 2021 KEAN partnered with Kisumu Environmental Champions — who describe themselves as “a group of kids, teenagers and youths from Kisumu County working on Environmental education and Climate Action” — to organize a “climate strike” where they called for a ban on plastic diapers and plastics in general.
The recently concluded United Nations Environment Assembly (UNEA) issued a resolution calling on UN member states to “continue and step up activities and adopt voluntary measures to combat plastic pollution, including measures related to sustainable consumption and production, which may include circular economy approaches.”
In the absence of such measures, youthful Kenyans are stepping into the breach, too keenly aware of the environmental future that awaits them if no action is taken. LeafyLife is a Kenyan start-up that is using Green Chemistry to recycle waste diapers and sanitary pads sustainably. Using a circular economy approach, the social enterprise has developed a chemical process that recycles the waste into a fuel gel that lasts 10 per cent longer than kerosene, emits 76 per cent less carbon dioxide, and no carbon monoxide, smoke or soot.
LeafyLife was founded by a trio of graduates from the Department of Chemistry of the University of Nairobi who were moved to act in 2019 when they became aware of the threat posed by discarded disposable diapers. Peter Gachanja, Denis Muguta and Melvin Kizito received recognition for their innovation on the occasion of the Global Sustainable Chemistry Week organized by the International Sustainable Chemistry Collaborative Centre (ISC3) in Frankfurt am Main, Germany, in November 2021.
But can initiatives such as LeafyLife become successful without the development and implementation of a robust framework that actively encourages local innovation in the field of solid waste management? The global baby disposable diaper industry was valued at US$43 billion in 2020 and continues to grow. Without decisive government action, and if the UNEA call for an end to plastic pollution remains another dead letter, the industry will continue to thrive and a product designed to lessen the burden of caring for a toddler will continue to generate waste that will become that child’s legacy. And the legacy of that child’s descendants for many generations to come.
The Abortion Debate: A Personal and Anthropological Perspective
In the wake of the United States Supreme Court’s ruling overturning Roe Vs Wade, Martin Owino gives a personal account of his experience of abortion as a husband, a father and a Christian.
Is abortion murder? When does life begin? And what of the overturning of Roe vs Wade?
But first, let me share my story.
We didn’t mind welcoming our firstborn. Of course, we would have preferred a slightly delayed arrival. But, heck, we had conducted a Christian wedding, and we were terrifyingly excited about our child’s arrival about a year later. Children, the Bible says, are a heritage of the Lord.
Then, three quick years later, the second born arrived. Again, unplanned. But, well, economically sustainable. Or so we reasoned. While the second delivery had also been smooth, we wanted this to be the last child we would have. However, both of us were a bit reluctant about taking hormonal contraceptives. We had heard stories of close friends who had struggled to conceive after using hormonal contraceptives. We were also aware that medical research pointed to a possible link between synthetic hormones and the development of certain types of cancers, which made us wary of making that choice. We considered the coil because it is non-hormonal but the way it worked seemed like abortion, which to us at the time was a most abominable sin.
We thought we could manage with natural methods, using condoms during the fertile window of the menstrual cycle, usually between the 7th and the 16th day. For a while, we thought we were acing it. However, and unknown to us, we were treading on dangerous ground.
When my wife conceived two years later, she was traumatized. In desperation, she suggested abortion. I, however, brushed the suggestion aside; I thought it was unethical and unbiblical. We kept the pregnancy. Those were some of the longest nine months of my life. The truth is my wife did not want the baby. She kept it at my insistence. Well, the baby finally arrived—tolerated more than celebrated, a low-key birth that even our parents learnt about much later.
After three accident-babies, we had to make a decision on some form of contraceptive—preferably a permanent one. The natural method had failed spectacularly. We had two alternatives: either my wife underwent tubal ligation or I had a vasectomy. From our reading, we saw that having a vasectomy was a simpler procedure, taking less than twenty minutes. I therefore decided to go under the knife and spare my wife a more complicated operation. It even sounded heroic.
I called the facility in advance and booked a date when I would have the vasectomy. It was a reputable hospital and the doctor was an experienced urologist who had carried out vasectomies for three decades without encountering any complications. It was time to bite the bullet.
I took the afternoon off from work one chilly Friday and went to the hospital where I found a small queue, nothing to make me fret. I waited my turn and saw the urologist at 4 p.m. A female nurse in a blue apron and well-fitting trousers stood beside him. Light-hearted introductions put me at ease and there followed a question-and-answer session during which I gave my medical history. Then I was asked to climb onto the surgical bed and remove all my lower garments.
I felt very uncomfortable.
It had not occurred to me that I would be doing this in the presence of the female nurse, or even that she would be involved in the procedure, taking hold of my penis, and presenting it in the position that the urologist required. In all my married life, I had not been in such a situation other than with my wife; it felt almost like sexual abuse. It didn’t help matters that the nurse was young and not unattractive. I gritted my teeth and looked up at the blue ceiling.
Then I thought of what my wife—and other women—go through in the offices of male gynaecologists and obstetricians. I swallowed a lump in my throat and let the thought slide. As expected, the procedure went well and I was out in 15 minutes. I even took a matatu back to my house and reported to work the following Monday.
I was advised, among things, to abstain from sex for a while (I cannot remember the exact days) in order not to jeopardise the success of the operation. I followed the advice to a tee. I was thrilled that my wife and I were now putting the subject of contraception behind us. My doctor assured me that the procedure was 99 per cent effective—or something close to that—and I did not think it was useful to worry about what the snowball’s chance in hell of something going wrong.
After about a month, I resumed my normal sex life. However, about a year later, Murphy’s Law would soon spoil the party.
It was the 31st day of my wife’s menstrual cycle and her periods had still not come yet for many months her cycle had been remarkably regular: 26-28 days. She said that she had not experienced the usual pre-menstruation signs at all. I dismissed her anxiety with a wave of the hand; three days was not anything to worry about. But two days later, on her 33rd day, the “visitors”—as we still call the arrival of her menses—were still nowhere to be seen. This time she was adamant; we bought a self-test pregnancy kit the same day.
I was still quite confident, unbothered even. I couldn’t be the statistical aberration. My wife did the test that very evening and brought me the results. They were positive for pregnancy! It was like a thunderbolt. But we read somewhere that the most accurate time for the test was in the morning hours, something to do with the concentration of the hCG hormone (the human chorionic gonadotropin is a hormone that is produced by the placenta during pregnancy) so we consoled ourselves with that information.
We awaited morning with a lot of apprehension, not untinged with panic, but the following morning the test came back positive. For my wife, having another baby was completely out of the equation. This time, I shared her views. To say that my wife was devastated is an understatement.
Abortion? That’s right. We were terminating the pregnancy.
Three children were enough. Four looked like a pandemic. We called the urologist in mid-morning hours and he gave us an appointment for a week later. That would be the 40th day. While I supported my wife’s decision to terminate the pregnancy, I was still a troubled man. I couldn’t reconcile this decision with my Christian worldview. Naturally, I turned to the Bible, to read the one verse that was constantly beeping in my mind, the verse about Jeremiah and how God had chosen him to be a prophet before he was born.
After everyone had gone to bed, I went to my study and opened the Bible, not for encouragement, but to ascertain its condemnation. I went for my favourite version, the KJV.
Before I formed thee in the belly I knew thee; before thou camest forth out of the womb I sanctified thee, and I ordained thee a prophet unto the nations.
Strangely, this verse did not now appear to support the thesis of life before birth; certainly not that of personhood before birth. Instead, I thought it merely supported the thesis of the omniscience of God: the all-knowing, far-seeing God. In any case, I wondered what the “Before-I-formed-thee-in-the-belly” time was. When does God start forming people in the belly? If it’s at conception—when the egg and the sperm meet—then where is the autonomous personhood of Jeremiah before this time, the individual that God says he knew before this process and ordained to be a prophet? It could well be the sperm of Hilkiah, Jeremiah’s father, or the egg of Mrs Hilkiah, Jeremiah’s mother.
I put the Bible aside. Obviously, I was justifying myself.
Then when I was still turning over this text in my mind, I remembered reading Obama’s The Audacity of Hope where he argued that positions on abortion that ignored the science of foetal development were unreasonable. Of course, I had dismissed Obama at the time. I thought his was the standard view of the “irreligious” American left. I looked up the word abortion in the Bible but I did not find one mention. I went to bed still convinced that abortion was wrong but somehow not as convinced as I had been before.
In the intervening days, I poured through the science of foetal development. I knew that the embryo inside my wife’s womb was not more than two weeks old. Later, I would discover that before two weeks, it was not even an embryo yet, but a zygote, or something of the sort. I wanted to know everything that happens to an embryo at about two weeks: how it looks like; whether it feels anything; and which organs have already formed.
According to scientists, there are some Ultrasound procedures that can detect a heartbeat about four weeks after conception, even though there’s still no heart. It was a mystery that I couldn’t fathom. Still, this provided me with significant self-defence ammunition; if the absence of a heartbeat signifies death, the presence of a heartbeat should signify life. Therefore, there’s no life in my wife’s womb since the “baby” is less than two weeks old. Hence, there should be no guilt for murder.
Of course, I did not also want the embryo/zygote inside my wife’s womb to feel the pain that is usually associated with as serious a crime as murder. The document that most assuaged my conscience was the Royal College of Obstetricians and Gynaecologists’ (RCOG) 2010 report on fetal awareness. According to the report, pain perception depends on the development of the cortex, which in turn normally doesn’t start to functionally develop until after about 24 weeks of gestation. Even with the development of the cortex, pain awareness is not guaranteed. This is because the experience of external stimuli will still depend on consciousness, which in turn comes significantly later.
I almost grinned.
The day of the appointment arrived and we made our way to the medical facility. The first test was a pregnancy test on my wife; both a blood test and a urine test. Of course, the test came back positive—even though I still hoped it would come back negative. Then it was my turn.
Did the vasectomy procedure really fail?
My doctor invited me to go into his office alone—unaccompanied by my wife. He told me that it was possible the vasectomy did not fail and that my wife may have “stepped out”. He asked me if I was ready to handle such an outcome.
It was a no-brainer; I trusted my wife completely. I gave the doctor the go-ahead to examine me to ascertain whether the vasectomy procedure had truly failed or if there was some monkey business. But he needed my semen for this test. He gave me a small specimen bottle, called my wife to explain to her what to expect, and walked us to a well-lit room with a metallic bed that was quite high.
In these circumstances, all my sexual urges disappeared like snow before the rising sun. It was almost two hours later that we managed to get going. After another hour, I went back with the semen specimen that had been procured without any passion—without any enjoyment or sexual pleasure. After carrying out the necessary tests, visibly surprised, the doctor announced the results. The vasectomy had failed. He gave my wife two tiny tablets, to be taken at six-hour intervals and also offered to do a repeat vasectomy at no charge.
My wife took the tablets as directed and the “visitors” got the cue. Over the following four days, she would experience what resembled her normal menstruation, only a tad heavier and lumpier. That was it.
I did not go back for the repeat vasectomy. I think I just gave up because of discouragement. However, I still believe my case was just an exception. Of course, the thought comes to me once or twice a year—when I wonder about what might have become of the “baby”. Still, it’s never accompanied by crushing feelings of regret or shame.
The subject of abortion has never ceased to intrigue me. I have quietly followed the abortion debate, admittedly seeking to justify my decision, even though I rarely admit this.
In the Christian world, it is a settled matter. Abortion is murder because life starts at conception when a sperm cell enters an egg cell and their genetic materials mix. Never mind that even after this meet-up and subsequent fertilization, the chromosomes do not mesh well in as many as 90 per cent of cases—and most are discharged unnoticed from the body. So, when a woman aborts, there is a high chance that she is aborting what may not have become a baby after all. Some have adroitly avoided this dilemma by arguing that life begins not at conception (since conception is chaotic and in a majority of cases is not successful), but after the chromosomes have mixed up successfully and settled into a rhythm.
Also, zygotic splitting, which leads to the formation of separate twins, usually takes place a few days after conception. This definitely upends our ideas of individual and autonomous personhood—especially at the time of conception. At this stage, the one-cell zygote is definitely biological life. But whether it’s an individual human life is another matter altogether. Still, some argue that life begins when the zygote burrows into the walls of the uterus, a process called implantation, which takes place about a week after fertilization. And while many argue that the starting point of life should be at the first occurrence of a heartbeat—which is usually after about four weeks—some insist it should be much later, when brain-wave patterns emerge. Then there are those who hold the view that life begins when it is viable outside the warm confines of the womb. The jury, as they say, has long been out.
Then there is the issue of whether the life of the unborn is equal to the life of the mother.
The Bible commands that “When there’s a fight and in the fight, a pregnant woman is hit so that she miscarries but is not otherwise hurt, the one responsible has to pay whatever the husband demands in compensation. But if there is further damage [such as the death or injury of the mother], then you must give life for life.” (Exodus 21: 22-23-MSG Version). Clearly, the life of the unborn, warranting a mere fine, is not the same as the life of the mother.
Mishna, the first major written collection of the Jewish oral tradition, has this to say:
If a woman is having trouble giving birth, they cut up the child in her womb and brings it forth limb by limb, because her life comes before the life of [the child]. But if the greater part has come out, one may not touch it, for one may not set aside one person’s life for that of another.
This shows that the life of the baby only assumes equal significance with that of the mother at birth. A different passage addresses the situation of a pregnant woman who has been given a death sentence. Apparently, the pregnant mother is executed even though there is an innocent “human being” in the womb. However, should labour pains begin before execution, the baby is spared since it is now recognized as a human being with the right to life.
In African traditional societies, many ethnic communities allowed abortion, which goes to show that it is not just some foreign idea foisted upon us by Western agencies such as Planned Parenthood. In his book, A Study of Abortion in Primitive Societies, Georges Devereux, a Hungarian-French ethnologist, describes how 400 pre-industrial societies sometimes encouraged, or even commanded abortion. Of course, there were others where abortion was met with resignation or even deep horror. According to Devereux, Maasai women had to abort the children of sick or old fathers. The Ashanti women of Ghana were expected to abort if they had been involved in premarital or adulterous affairs. The Baganda princesses were not expected to marry as this would cause tension between patrilineal and matrilineal succession lines—leading to widespread abortion. Among the Chagga of Tanzania, women were not expected to give birth after their daughters were married. They would therefore abort.
Of course, culture says nothing about normative ethics. The Kikuyu, for instance, killed twins. But in this age, that practice would be horrifying even to the most militant crusaders of African culture.
The story of abortion is a story of life. And from where I sit, life is so mysterious. You cannot just draw a line and say that “this is the beginning thereof”. But in overturning Roe Vs Wade, I think the Supreme Court has travelled back to the future. The back and future of a fascist church and state alliance.
Will We in Kenya Ever Respect Each Other’s Bodies, Lives and Rights?
Being queer in Kenya is dangerous and being denied the same rights and freedoms accorded to other Kenyans is our reality.
Sheila Adhiambo Lumumba was buried clad in a white suit and a black shirt. Black was her favourite colour. Their coffin was also white, almost porcelain white, with gold-plated handles. To jog your memory, Sheila Lumumba was brutally murdered in their flat in Karatina in April 2022. Just a few weeks ago. Their body was discovered having been stabbed severally, bludgeoned, and sexually assaulted in a place they had presumed was safe—their home.
Home. Sheila identified as a non-binary lesbian. And preferred to use the pronouns they/them instead of she/her. That is what they wanted. I came across several media reports that described them as an alleged lesbian! No one needs to prove their sexuality or gender identity to anyone. Sheila knew who they were, and so did her parents and relatives who mattered to them.
Here is a quick tutorial for those unaware of pronouns and the term non-binary. Non-binary is an umbrella term referring to individuals who experience gender that is neither exclusively male/female nor in-between. Sometimes gender non-conforming and non-binary are terms used interchangeably. Hence the use of they-them as pronouns. For example, Sheila used they-them to identify themselves. LGBTQ or even queer could be used as a collective term if you struggle with the non-binary concept. However, it would be respectable to address a person with their preferred pronoun – they-them, she-her or he-him. Class dismissed.
You might say, wacheni! Hawa watu are making it complicated to understand. However, the concept of existing outside the female-male binary also existed in some African cultures. In Transgender History and Geography, G.G. Bolich writes:
“Before the implementation of rigid European rigid binaries, within the Dagaaba tribe of Ghana, Burkina Faso, and the Ivory Coast, gender identity was determined differently. Shaman Malidoma Somé of the Dagaaba says that gender to the tribe is not dependent upon sexual anatomy. ‘It is purely energetic. In that context, one who is physically male can vibrate female energy and vice versa. That is where the real gender is.’ The Igbo of Nigeria, also in Western Africa, ‘appear to assign gender around age 5’. In Central Africa, the Mbuti do not designate a specific gender to a child until after puberty, in direct contrast to Western society.”
Sheila may have looked female, but how they felt and presented themselves daily came from a place deep within themselves. It made them be at peace with how they were created. Who are we to argue with that? Sexual orientation is about who you’re attracted to and who you feel drawn to romantically, emotionally, and sexually. Gender identity is about who you are. Diversity is a delightful thing—just look at the nature around us. Why can’t we see one another as beautifully and wonderfully made?
Sheila was also beautifully and wonderfully made, the eldest daughter to John and Millicent and elder sibling to Derrick. Yet Sheila’s killers did not see them as beautiful or wonderful. They did not see them as a daughter, as a sibling. Their killers probably didn’t like the fact, that alijijua and how they presented themselves and so they sought to put Sheila “right”. These men chose violence instead of knowledge and thought the best way to understand Sheila was with their penises and not their minds. But Sheila was a strong person. They were a foodie who enjoyed working out and was deliberate in how they consumed the food. You can tell from the photos online they loved how they looked.
We are yet to know what happened within Sheila’s home, but they did not deserve the rape, the stabbing, the beating, and bleeding to death. We know it was not one man but many cowardly men who ended Sheila’s life. There was corrective rape that took place. Let us call it what it is. Let that sit with you.
Kenya is not safe for women. It is even more dangerous for queer women. There is no haki iwe ngao for them to even safely report the abuse and harassment they have to endure daily. Our streets are hard for our women. Why are we as a nation so threatened and insecure about our women? Why are we as a society intimidated by individuals ambao wanajijua or choose not to conform, those who choose to be different? Why are we happier saying we are trying, yet the fruits of our failure are evident to all? Why do we want to be seen to be surviving rather than thriving? Why are we scared of ourselves? And why do we quickly resort to violent words or fists when we see individuals walk into their own?
Sheila had walked into who they were. But, to her assailants, that was not the done thing. We despise umama (femineity), and reward it with unyama. Just look at the language used against every female political aspirant in the run-up to the elections. Why do we hate our girlfriends, wives, mothers, daughters, sisters, aunts, nieces and grandmothers?
You can’t tell me otherwise because Kenya would be a safer space for women if this were not true. But, heck, we’ve added the blood of a murdered Olympian onto our hands. Even Agnes Tirop’s hard-earned success brought no peace to her abusive marriage. First, Tirop was cheered on as she ran for Kenya but ignored when she wanted to run for her life. Then, Damaris Muthee, another athlete, was killed by her boyfriend ten months later. Let’s add 19-year-old KIMC student, Purity Wangeci to the list of murdered women, whose death is making the headlines as I write this.
In March 2022, a female driver was assaulted in her car. Ironically, on Wangari Maathai Road. Her piercing screams did not bring safety but instead brought out smartphones and octopus hands that groped and invaded her body, bringing up the latent fear women constantly carry to the fore. We bully our women on the streets, on the roads, on public transport, in the workplace, in schools and universities, and even in places of worship. And we kill them in their homes.
Incidentally, this was not the first time Sheila had experienced violence in their life. The Lumumba family were victims of the post-election violence of 2008. They lived in Naivasha at that time. Sheila’s dad, John, ran a successful bar in addition to working at a nearby lakeside county club. Millicent, Sheila’s mum, ran a shop. They didn’t believe that their neighbours would turn on them. The Lumumbas were known to all. But when they fled Naivasha for Nairobi, they left with nothing but their lives. They lost everything. Everything. The Lumumbas are suffering a more profound loss than the loss of material things. We as a nation know the pain of 2008. We as a nation almost lost Kenya, and it seems that we forget that we all grieved.
In a recent piece that appeared in the East African Standard, Clay Muganda stated that it was time for Kenya to have a serious conversation about the queer community. I was almost grateful for that piece, but Clay chose to misgender Sheila, missing the opportunity to educate his readership and disrespecting Sheila. He stated that homosexuality in Kenya is illegal, yet it is not. Homosexual sex is, but just to let you know, ALL sex that doesn’t result in conception, as per Penal Code 162, is illegal. He described us, Sheila included, as entitled and said that we should stop playing the victim card and accept that not all will like us.
Sheila is now a victim, and their murderers didn’t like them. Their death hit the LGBTQI+ community hard. Being “allegedly” queer in Kenya is dangerous. The fact that you can be denied the same rights and freedoms accorded to other Kenyans is our reality. At least six other murders have occurred in the last two years, and the murderers roam free. Even before the pink and white roses that draped Sheila’s grave had begun to wilt and dry, there was another brutal attack on a 50-year-old intersex person who was found raped and murdered in Cherang’any, Trans Nzoia.
The police response is lacklustre, almost to the point that it feels like a queer death is almost deserved. Sadly, this response is mirrored in the press and in the society in general. We are invisible and described as “none-issues” in life and death. Families sanitise the funerals of queer community members, and the “gay” is swept away. This form of erasure is an insult to the deceased’s legacy.
I applaud Sheila’s parents because they saw their child for who they were. Sheila’s coming out may have been hard to swallow, but they saw Sheila in the way they wanted to be seen. How Sheila chose to present themselves was a known fact by cousins as well. Their funeral was attended by busloads of members of the LGBTQI+ community who descended upon the ancestral home in Gem and supported the Lumumba family in laying Sheila to rest.
Sheila was surrounded by love and loved people. They spoke their mind and told it like it is. They were headstrong, disciplined, funny, and enjoyed having a good time. Sheila also loved reggae. They were also growing and learning, realising that adulting was not easy, and they had to work hard and navigate a country that doesn’t protect its women, queer or otherwise.
Research conducted in 2020 by the National Crime Research Centre established that the number of Gender-Based Violence (GBV) cases recorded between January and June 2020, saw a 92 per cent increase in violence compared to the previous year. These were incidents of rape or attempted rape, sexual offences, defilement, child marriage and murder. As you digest that 92 per cent increase, consider this: female victims accounted for 71 per cent of the roughly 2,400 cases reported. The report puts it bluntly, stating that ten females are assaulted daily. So, do you think we still love our women?
Let’s not forget the verbal assaults and harassment that don’t make the data sets. A friend of mine revealed that she was accosted by a police officer who asked why she was harassing men by showing off her cleavage. His hand was on his penis as he spoke to her. She discovered that she was not the first woman he had harassed this way at this particular location. This lewd encounter can be echoed a hundred thousand times across the country. What do you do when the people who are meant to protect you also harass you?
Kenya is not safe for its women, for all men are a potential threat. Me included. Our muted ears and whimpered reactions have driven women into becoming invisible and silent bearers of pain, walking around in fear so that they can get home in one piece. But is home safe? Maybe Sheila should answer that?
We are turning into a nation where those who stand out or speak out or choose to be different, and more so our women, find themselves abused or assaulted or with bludgeoned bodies, shattered spirits, skittish steps, and deflated dreams. And sadly, those who speak out against this carnage are branded noise-makers, prostitutes, feminists or puppets. And this is how subtle efforts to champion truth are being silenced. Haki is no longer our ngao.
The International Day against Homophobia, Biphobia and Transphobia is commemorated on May 17th. This year’s (2022) theme is “our bodies, our lives, and our rights”. This day is important to the LGBTQI+ community here in Kenya and worldwide. However, following Sheila’s death and the continuum of violence that targets women, queer or straight, this year cannot be celebrated in a silo. Queer persons in Kenya will still not matter. Furthermore, female bodies, lives and rights will remain unprotected, punches and penises will continue proclaiming the patriarchy, and liberty and freedoms will be moralised.
Sadly, Sheila Lumumba will join the army of fatalities, thanks to our thin memories and lackadaisical law enforcement, as we choose to ignore the bloodied hands that stained Sheila’s walls.
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