Yesterday(19th Jan 10), the Parliamentary Select Committee on Constitutional review, decided to delete the only section LGBTI Kenyans had fought so hard to retain in the Bill of Rights. Even though the draft constitution in section 67 (2) said “Every adult has the right to marry a person of the opposite sex, based upon the free consent of the parties” they still felt the need to delete subsection (3) which recognized the right of everybody to found a family -  “Every adult has the right to found a family.”

Though the subsection 3, did in fact look like it was contradicting the preceding section, which seemed to give marriage rights to opposite sex couples, LGBTI rights had hoped their right to found a family would be constitutionally guaranteed even if, such would not be necessarily referred to as marriage. LGBTI rights activist have consistently argued of their disinterest in advocating for equal marriage rights, not because such are not important, but in the context of criminalization and denial of services, fighting for basic rights acquires more urgency.

The rights activism in Kenya, and indeed in much of Africa is facing such stiff opposition, that one wonders whether any headway is possible. Reflecting on the difficulties in even getting the deposition accepted by the Review experts, and even the courage of presenting before a hostile crowd, only for it to be summarily removed by the PSC, one has to wonder if we are not barking up the wrong tree.

What is the possibility of getting equal rights in Africa, while even in the West there is still some ground to be covered? For activists in their middle ages, is there even hope of living in a society free of stigma induced criminalization? more importantly are there alternative strategies that can be used to give access to full human and productive life, even as we wait for Africa to catch up with the rest of the world?

SKILL BASED IMMIGRATION.
LGBTI rights activism does get a significant part of its funding from western countries. This funding can generate positive returns, with re-directing of focus. For example, if the funding is used not only to enlarge the democratic space in the Kenya, through the current strategies of activism, but also through sharpening of specialized skills in the donor countries,  for those LGBTI who would consider emigrating.

For the LGBTI availability of options, helps in expanding their activism opportunities but also provides the donor countries with a positive return on their funds. Kenya and other African countries will with time begin consider the opportunity cost of their laws against the LGBTI citizens. The donor nations will benefit from motivated and highly skilled labour force, without having to incur the loss of remittances which characterises the heterosexual emigrants.

While am not aware on any human capital emigration model developed along the lines of sexual orientation, it is possible to estimate the benefits to be derived from encouraging LGBTI skilled labour or investor migration. Indeed the existence of such a policy would not only provide opportunities to the existing qualified LGBTI emigrants, but would also shape the career choices of young LGBTI youths in African countries.

The ethical case against encouraging skilled labour emigration,  is based on comparative need in the African country. The doctor ratio in Kenya for example is 1, for every 7, 200 patients, and the relative cost of training one per capital fails to compare with many countries in the West, hence some say there is  an ethical case for discouraging this skilled human capital emigration.

With regards to gay skilled or even investor emigration however, these are not needed in their own countries. A gay man if successfully prosecuted would have to spend 14 years behind bars in Kenya, and in Uganda, one would risk being put to death. Such wastage of human capital is unjustified if it can be utilized elsewhere.

That is why progressive nations which fund LGBTI rights should also consider creating emigration opportunities for certain cadre of LGBTI persons from countries that criminalize and prosecute them.