In what has been described as the landmark ruling that will become a precedent for many countries in Africa, Kenya's High Court is due to deliver its ruling this Friday on whether laws that criminalize same-sex relations are unconstitutional. The much-anticipated ruling is preceded by the death of one of the country's literary heavyweights and LGBTQ rights activist, Binyavanga Wainaina.
The ruling is with respect to Petition No 150 of 2016 Eric Gitari v Attorney General & Another which was filed in 2016 by LGBT+ activist Eric Gitari on behalf of the National Gay and Lesbian Human Rights Commission (NGLHRC), a Nairobi-based non-governmental organisation which he co-founded.
The petitioners who are challenging the constitutionality of Sections 162 a) c) 163, 165, of the Kenyan Penal Code vis-a-vis the Constitution of Kenya, 2010 argue that the provisions are outdated and should be repealed as they infringe on the rights of the LGBT+ community in the country.
Section 162 of the Kenyan Penal Code provides for ‘Unnatural offences’ and states, any person who—
(a) has carnal knowledge of any person against the order of nature; or(c) permits a male person to have carnal knowledge of him or her against the order of nature,is guilty of a felony and is liable to imprisonment for fourteen years:
Section 163 of the Kenyan Penal Code states that:
Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.
Section 165 provides:
Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
While the LGBT+ community and fellow activists are optimistic that the country's High Court will rule in their favour and determine the laws criminalising same-sex relations as unconstitutional, a vast majority of Kenyans believe that the anti-homosexuality laws should not be overturned. Many of them argue that decriminalising the laws would lead to degeneration of values in the Kenyan society. They further argue that homosexuality is a western phenomenon that has no place in African society. In their view, to find that the laws are unconstitutional would be the worst possible ruling that will open a Pandora's box.
The West say this is a good thing yet they say having more than one wife [bigamy] is wrong. Let them put their house in order before they try to ruin ours".
Kenya is a largely conservative country and just like any other society, divergent views are expected. While some activists argue that such attitudes are informed by the anti-homosexuality laws, other activists are quick to state that it is not the laws themselves rather the practice of same-sex being 'shoved' down people's throats that is the problem. According to one human rights activist whom we spoke to on condition of anonymity for fear of reprisal:
Many Kenyans are reluctant to accept same-sex relations because they feel as though it is being forced upon them. They feel as though they are not allowed to hold their own opinion. Essentially they are being told to accept or be labelled homophobic or transphobic. Everything is politically correct these days and people are afraid to disagree. You see our society is very conservative and you cannot change that by simply changing the law. That is just one part because the law simply sorts the outside, it does not fix the internal prejudices in people. We have to come to their level to have any meaningful impact".
Many activists have argued that Kenya should join the list of nations in Africa such as Burkina Faso and South Africa that have decriminalized anti-homosexuality laws. A vast majority of Kenyans, however, think that the country should focus on other pressing issues rather than joining a list of countries promoting 'unnatural acts'.
In an interview with CNN last year, President Uhuru Kenyatta said the laws criminalizing same-sex relations are supported by "99 percent" of the Kenyan people. Given the nature of politics in the country, it would be highly unlikely that the President would speak out of turn with his political support base which is largely conservative.
According to Eric Gitari, he expects the court's ruling to be a monumental occasion for LGBT+ equality.
It has the potential of creating a tidal wave across Africa, especially in the (countries in) Africa where the British colonial legacy of criminalization still persists."
According to Gitari:
Kenyans are a tolerant and curious lot. Despite its laws, the country is a haven for LGBT refugees in East and Central Africa with a vibrant social movement and growing government interest in the health of gay people. However, negative stereotypes persist including the wrong beliefs that LGBT persons are all sex workers and all gay men have HIV, Gitari said. At least half of Kenya's LGBT persons in Kenya have suffered physical and verbal assault, according to a survey by the National Gay and Lesbian Human Rights Commission. Most assaults are not reported because gays don't have confidence they would get protection from the police."
In the recent past, Kenya's courts, which many assume to be conservative on issues of sexuality, have recently ruled in favour of LGBT rights. In 2015, the High Court of Kenya ruled that the petitioners in the current case, the National Gay and Lesbian Human Rights Commission (NGLHRC), could register with Kenya’s NGO Coordination board with the words “gay” and “lesbian” in its name. In its ruling, the High Court stated that:
ALL, including LGBT persons, should be allowed to form an organization and that what is criminalized is the act (in the penal code) and not the person, the Kenyan.”
Being dissatisfied with the ruling, the NGO Coordination board appealed this decision, arguing that NGLHRC was “unacceptable,” and that it could not register it because Kenya’s penal code “criminalizes gay and lesbian liaisons.”
In a majority decision, the Kenyan Court of Appeal dismissed the appeal and upheld the High court's decision. Three out of the five judges sitting in the Court of Appeal in Mombasa ruled in favour of NGLHRC. Judge Philip Waki said that the penal code does not criminalize the LGBT’s ability to form a group and that they have a constitutional right to freedom of association.
Last year, the Court of Appeal declared unlawful the use of forced anal exams to test whether two men had gay sex.
We will just have to wait and see whether the courts will rule in favour of the petitioners and decriminalise the laws mentioned herein or dismiss the petition altogether.
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