Disappointing Ruling on
Decriminalising Homosexuality In Kenya
LGBT members attend an inter-faith service in Nairobi, Kenya, on February 17, 2019. PHOTO | SIMON MAINA | AFP
The ruling of Kenya’s High Court on the decriminalisation of homosexuality on sections 162 and 165 of the country’s colonial-era Penal Code was much awaited by LGBT persons in Kenya, East Africa and the global community at large. However, the ruling has been, much to the dismay of LGBTQ communities in Kenya and elsewhere.
Conversations around decriminalising gay sex in Kenya have been in existence for quite a while. Pressure by LGBT activists paid off in 2015, when Kenyan courts used precedents established by the global community on LGBTQ human rights in order to rule against discrimination on the basis of sexual orientation and in favour of the registration of the National Gay and Lesbian Human Rights Commission (NAGLHRC). LGBTQ activists took further bold legal steps in 2016, by launching a case that contests the anti-homosexual legislation. The protection of lives and liberty of LGBTQ persons in Kenya are reliant on the prevailing constitutional values. However, LGBTQ human rights will continue to be unrecognised based on the High Court ruling. 24th May 2019 will be marked as one of the saddest days in Kenya by the LGBTQ community. The High Court of Kenya embraced the view that the petitioners were unable to provide a persuasive enough argument around the fact that section 162 and 165 of the Penal Code were; unconstitutional or in violation of human rights such as the right to dignity and privacy. Hence the High Court ruling to uphold criminalisation of homosexuality is going to have a bad impact on the LGBTQ community. It continues to subject LGBTQ persons to the danger of forced anal examinations, discrimination, limited access to education, health services and employment, as well as continued victimisation and hate crimes.
In support of our comrades in East Africa, Gender DynamiX had hoped that the Kenyan High Court would make history by getting rid of the draconian colonial era sections that criminalise same sex conduct. It would have been another milestone reached in the African continent, following Angola’s decriminalisation of same-sex relationships. Decriminalising homosexuality and getting rid of the British colonial laws will result in the termination of involuntary anal examinations and many other violations of fundamental rights of LGBT persons in Kenya and possibly set precedents for the East Africa region. As heart breaking as the ruling maybe, may our comrades not despair, the struggles continue.
LGBT individuals in Kenya have historically experienced discrimination due to the absence of the recognition of their right(s) to sexual orientation, gender identity and gender expression. As a trans and gender diverse human rights organisation, Gender DynamiX urges Kenyan courts to protect the human rights and dignity of LGBT communities in Kenya. We have a sense of hope that there will soon be conversations centred around the recognition that the rights to gender identity and gender expression are protected by constitutional provisions. Speaking more broadly, we urge the Kenyan government to ensure that LGBT refugees and asylum seekers be afforded the opportunity to apply for refugee and asylum status on the basis of their gender identity and sexual orientation.