Is homosexuality to be legalized in Kenya?
Mr. Ian Castleman, an Australian citizen who came to Kenya as a missionary. He is the founder of Ian Castleman Orphanage Kenya, said to be a mission of Deal Thy Bread Mission based in Australia. The said mission does not seem to have a presence in Australia, and basically consists of the orphanage in Kenya. The orphanage was set up to care for Orphaned and Vulnerable Children, including children living with HIV, disabled children and abandoned children.
Mr. Castleman ran the Orphanage in Kenya based in Elburgon within Nakuru County. He had over 100 children in his care. On September 17th 2012, he was charged in a Kenyan court with using his position as Director of ICOK to seduce boys in his charge to have sexual encounters with him. He is reported to have been arrested at the airport trying to flee the country when he learned that a complaint had been filed by one of the boys, and that police were investigating the matter. The offences were alleged to have taken place between 2008 and 2012.
Rather than proceed with the matter as filed, Mr. Castleman has gone on to make the case one of a challenge to the Sexual Offences Act, as well as the Constitution of Kenya. He alleges that by prescribing the penalty for sexual offences, the Magistrate has no discretion in sentencing therefore his rights as an accused person are infringed because the judicial officer hands are tied by the law. Secondly, he says by not allowing same sex relations, the Kenyan law and by extension the Constitution is discriminatory against persons who are inclined to practise consensual same sex.
This case brings to the fore several questions. Mr. Castleman came to Kenya as a Missionary, working with vulnerable children. Under Kenyan law, he ought to have disclosed his sexual orientation to the authorities, since persons who practise homosexuality are not allowed to foster or adopt children. This provision goes as far as prohibiting fostering and adoption of single persons of children on the opposite sex. The rationale is simple, so that the child is protected from sexual predators. Mr. Castleman has been in Kenya for over a decade, and the allegations he now faces allege the offences were committed over a period of two year. The seduction was allegedly on the promise of some financial gain. Whichever way you slice it, using one's position of authority to gain sexual favour, or offering to pay for sexual intercourse are both illegal under Kenyan law.
Secondly, as a man coming in the name of God, he ought to have had spiritual covering from Australia as well as here in Kenya. A quick search reveals no ministry in Australia registered under "Deal Thy Bread Inc Australia". Indeed, the website, is a single page with no information at all. The children he was dealing with were already vulnerable and as such did not have anyone else apart from Mr. Castleman and the Kenyan Children's Department. This means he operated without any external supervision, though he clearly gave a different impression.
Finally, Mr. Castleman now has turned the lower court matter into a high court matter by challenging the Sexual Offences Act as well as the Constitution. There is the place to challenge a country's laws. As a guest in our country, and one who is suspected of misbehaviour, Mr. Castleman's tactics may on the surface seem to be a means to escape from answering the charges he faces. However, for him to now change it to become a question of changing our laws to suit his lifestyle is condensending. Kenya may come to the place where same sex relations are decriminalised and even legalised. But that is a conversation that should be left to the Kenyan people and the time for it to happen should be when Kenyan society is ready to embrace the decision. This conversation started by someone facing such serious charges smirks of arrogance and high handedness. If one goes to a country where public consumption of alcohol is illegal and he walks down the street with a can of beer, upon his arrest, he would have little recourse but to face the music. Mr. Castleman's arguements may be intended to only save his skin, but if he has his way, would change the Kenyan reality forever.
The accused maintains that he had not committed any offence and the charges against him were contrary to public policy and international law. If he has not committed any offence, then the matter before the Principal Magistrate should be underway and in no time he will have cleared his name. As for the charges being contrary to public policy and international law, we shall leave to our Legislature and our Courts to decide.
It is a sad day in Kenya when those who give us the impression that they are here to help us, end up being the ones hurting our weak and vulnerable children. There is plenty that is being done by many organisations and individuals, serving in Kenya at great personal cost, and for these we are grateful. Mr. Castleman should get a fair trial on the charges he is facing, and a just conclusion given to him. The application before the High Court however, is trying to force Kenyans to reckon with a notion that is still in discussion in the public domain. We trust our judicial system and the courts to arrive at a decision that is beneficial to Kenyans.