Over the course of three days, a High Court in Nairobi, Kenya heard a groundbreaking challenge to the colonial-era laws that target LGBT Kenyans. This case, the first of its kind in Kenya, was brought by the National Gay and Lesbian Rights Commission (NGLHRC) and joined a similar petition by other LGBT groups seeking to strike down sections of the Penal Code.
While it is not illegal to identify as gay in Kenya – and there are no “gay propaganda” laws like those in Russia — LGBT groups argue that disputed sections of the Penal Code effectively criminalize sexual and gender minorities. Sections 162 (a), 162 (c) and 165, first introduced by the British during the colonial era, outlaw “carnal knowledge against the order of nature” and “gross indecency” and are punishable with up to fourteen and five years’ imprisonment respectively. Under these laws, sexual acts including anal and oral sex are illegal, as is intimacy between men including kissing, holding hands or cuddling.
The NGLHRC, which provides free legal aid support to LGBTIQ individuals, reports receiving over 1,000 cases of violations since it first opened its doors in 2013. Reports of violations range from murder to mob violence, rape, forced evictions, blackmail and extortion. Meanwhile, a 2014 governmental report showed that 595 individuals had been arrested and charged under the disputed sections between 2010-2014. LGBT rights activists suspect the number of violations against LGBT individuals are much higher, with many afraid to report their crimes.
A three-judge panel heard arguments that these laws violate the Kenyan constitution and are used to indiscriminately arrest, harass and justify violence and exclusion against LGBT individuals. The Kenyan Constitution is one of the strongest on the African continent on individual rights, and guarantees the freedom and dignity of all Kenyan citizens.
“We have a constitution that carries the will of the Kenyan people and that says no one should be discriminated against,” Eric Gitari, the main petitioner in the case states, “yet these laws do just that.”
The NGLHRC has previously litigated in the courts and successfully established judicial precedent that sexual and gender minorities are protected under the Kenyan Constitution in a 2013 case, Eric Gitari v NGO Board. That case challenged the NGO Coordination Board’s refusal to register NGLHRC with the words “Gay” and “Lesbian” in its name. In the court’s ruling, in favor of NGLHRC, the presiding judges noted, “that no matter how strongly held moral and religious beliefs may be, they cannot be a basis for limiting rights: they are not laws as contemplated by the Constitution.”
The attempt to strike down sections of the Penal Code is opposed mainly by the Attorney General and the Kenya Christian Professionals Forum, a vehemently anti-LGBT group. In a dramatic first day hearing, two more opponents were added to the case at the last minute: Senator Irungu Kangata, whose attempt to introduce an anti-homosexuality bill into law in 2014 failed miserably in Parliament; and legal representatives from one of the largest mosques in Kenya. Collectively, they argued that homosexuality was un-African and against the religious and moral values of Kenyan culture, which remains largely Christian and Muslim.
A lawyer for the Kenya Christian Professional Forum further argued that homosexuality was a “pathological disorder” and that attempts to strike down the disputed laws were nothing but a thinly veiled attempt to introduce same sex marriage — statements that elicited loud groans from a courtroom packed with members of Kenya’s LGBTQ community. Famed openly gay Kenyan writer Binyavanga Wainaina was among those who came to show their support. The case is supported by a broad range of civil society groups within Kenya. Meanwhile, an online campaign under #Repeal162 trended nationally, with many tweeting their support online.
NGLHRC’s tactic, pushing for legal recognition of LGBT rights through the courts, is part of a larger global trend that may see courts “become a critical counterpoint in upholding equal protection and privacy rights.” Currently, there are 72 countries across the world with laws that criminalize aspects of same sex relationships. There have been similar cases challenging the constitutionality of sections of the Penal Code criminalizing homosexuality; in many places, like Belize, Botswana, Cape Verde, Djibouti, Guinea Bissau, India, Mozambique and South Africa, repeal of the laws has been successful.
The case adjourned on March 1st and will receive a mention on April 26th when judges will issue a date for when a ruling can be expected.