JSC Interview: Kigen Questions Constitutional Limits on Same-Sex Marriage

During the Judicial Service Commission interviews for the position of Supreme Court judge, Katwa Kigen shared his legal interpretation of same-sex marriage while responding to questions from commissioners.

Kigen focused on Article 45 of the Constitution of Kenya, which defines marriage as a union between two adults of the opposite sex. However, he questioned whether the Constitution, when read as a whole, offers a broader view of family.

“I have sometimes wondered whether the Supreme Court should be asked to determine whether the constitution on its face is wrong because Article 45(2) says every adult has the right to marry a person of the opposite sex,” he said.

Questions on Inclusion

As the interview continued, Kigen raised concerns about possible exclusion.

“Now what happens to the transgender and intersex people in Kenya whose existence we have acknowledged? Are they being excluded by the constitution?” he posed.

He noted that Article 45(2) appears restrictive when read alone. Still, he pointed out that other clauses may suggest a wider interpretation.

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Marriage Versus Family

At the same time, Kigen drew a clear distinction between marriage and family. He said the Constitution takes a firm position on marriage. Yet, it may leave room on how society defines family.

“The Constitution Prohibits same-sex marriage. However, it inherently acknowledges that you can have a family of same sex,” he said.

He explained that provisions describing the family as the natural and fundamental unit of society could accommodate different family structures.

Also Read: Supreme Court Rules Cohabitation Alone Does Not Make a Marriage

Legal Argument, not Personal Stance

Kigen then clarified his position. He stressed that he was making a legal argument in response to the panel’s questions.

“I am just making it as a legal argument, I am not making it a personal position I need to clarify that,” he concluded.

Current Legal Position in Kenya

Meanwhile, Kenya’s legal framework remains firm on the issue. The Constitution of Kenya explicitly limits marriage to opposite-sex couples under Article 45(2). Courts have also upheld this position in past rulings, maintaining that same-sex unions are not recognized under Kenyan law.

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