What would it actually take to legalise same-sex marriage in Kenya?
I've been doing some research into what it would actually take for same-sex marriage to be legally recognised in Kenya, and I thought I'd share what I've found.
It seems that simply amending the Marriage Act wouldn't be enough. The bigger issue is Article 45(2) of the Constitution, which currently says that every adult has the right to marry a person of the opposite sex.
Because Article 45 is part of the Constitution and the Bill of Rights, changing the law to recognise same-sex marriage would require amending the Constitution itself.
From what I've found, there are two possible routes:
• Parliamentary initiative (Article 256): A constitutional amendment Bill would need to pass through both Houses of Parliament with the required majority. Since it would affect the Bill of Rights, it would then have to be put to a national referendum.
• Popular initiative (Article 257): Citizens could initiate a constitutional amendment, beginning with support from at least one million registered voters, followed by the required county assembly and parliamentary stages, and ultimately a referendum.
For the referendum, the Constitution requires participation by at least 20% of registered voters in each of at least half of the counties, and a simple majority of those voting would have to support the amendment.
So, as I understand it, if Kenya were ever to legalise same-sex marriage, it would involve constitutional amendment + parliamentary processes + a national referendum, rather than simply changing the Marriage Act.
I'm curious what others in the community think. Is constitutional reform something the LGBTQ+ movement in Kenya should be seriously discussing, or are there other legal avenues that could eventually lead to recognition of same-sex relationships?