Kenya’s High Court Upholds Law Criminalizing Gay Sex

A court in Kenya has ruled that the LGBTIQ community’s rights to privacy and human dignity can be infringed upon because they do not align with “national values.” The ruling from the High Court in Kenya effectively dismissed a joint petition by activists who wanted to strike down colonial era laws that criminalize a whole host of sexual activities — from oral sex to anal sex to sexual activity between same-sex individuals. Under a campaign dubbed #Repeal162, LGBTIQ Kenyans were hopeful that they could Repeal Sections 162 and 165 of the Penal Code which have been used discriminately by both the state and private citizens to target many in the community. While identifying as queer is not illegal in the country, many have (correctly) argued that the presence of these laws justifies the ongoing discrimination and violence the community faces in a country that is still largely, and virulently, homophobic. Punishment for violation of these laws ranges from five to 14 years imprisonment.

In their joint suit, activists relied on the 2010 Constitution of Kenya which had ushered in an era of individual rights set against the backdrop of African strongman politics that had ended with former President Daniel Arap Moi’s 24 year rule in 2002. At the end of his rule, marked by corruption, gross violation of human rights and the detention, disappearance and torture of opponents, the need for a new constitution with strong individual rights that would prevent the excesses of the past became clear. Claiming these hard won individual liberties, LGBTIQ activists argued that the disputed sections of the Penal Code violated, among other things, their rights to health care, privacy and dignity.

But in a disappointing ruling from the Constitutional Division of the High Court, the three judge bench echoed arguments made by opponents to decriminalization (mainly Christian and Muslim groups who oppose homosexuality). Among other things, the Court found that petitioners to the case had failed to provide sufficient proof that their constitutional rights had been violated—and that the disputed laws applied to all Kenyans, not just the queer community and therefore could not be deemed discriminatory. This in the same country where when famed Kenyan writer Binyavanga Wainana passed away earlier in the week, many went online to express the worst kind of homophobia because Binyavanga, since 2014, had lived publicly as a gay man. Blackmail, harassment sexual violence and physical assaults against the community are similarly well documented. Jabari Tirop-Salaat one of the petitioners to the case remarked, “Do they want dead bodies?”

Despite the fact that activists and the queer community have continued to insist that their suit was not about same sex marriage, the Court also drew a direct line between the petition and same sex marriage in their dismissal of the suit. Arguing that were same sex acts to be legalized they would result in same sex cohabitation which would in effect be the same as sex unions, which the Constitution does not allow for. Yes, the Court thinks that there are no same sex couples already living together, or more dangerously, signaled that same sex cohabitation in Kenya could be considered crime.

In its final, and most injurious blow, the Court found that “Constitutional rights are not absolute. Limitation is allowed and this limitation must be reasonable and justifiable.” In limiting the rights of the queer community, the Court called upon ‘Kenyan values’ a dog whistle to supporters of criminalization. Arguing for values, the lead judge said that, “The progress of the Kenyan nation, requires us to institutionalize Kenyan values,” and that the “Court must reflect societal values and those views were clearly expressed in Article 45 subsection 2,” which holds that marriage is only between a man and a woman. Arguing against a narrow interpretation of the Constitution, the three judges found that the will of the people under Article 45 (which was not being argued) had to be considered in ruling on whether individual rights had been violated.

In essence, in light of the fact that the majority of Kenyans opposed same sex marriage and unions, the rights of queer Kenyans could be limited.

[Allow me to break briefly from reporting to share how disappointing it is to witness hard won freedoms effectively thrown out and the room for criminalization of your personhood expanded by a Court]

And just like that, a dangerous precedent has been set that states individual rights in Kenya are only guaranteed if the majority agrees. A sincere failure of a Constitution meant to protect the tyranny of the majority against the minority, and that—so far—has done just that when it comes to Kenya’s queer community. It is safe to say that this battle is not over, with rights groups backing the ruling signaling that this is a case that will most likely end up at the doorstep of Kenya’s Supreme Court.

Kari is a creative writer born and raised in Nairobi, Kenya who spent her formative years in Minnesota—where she often dreamed of warmer weather. She is an avid traveler, perpetual list-maker and sometimes performer. Her words have appeared all over the internet, on the radio and on stage. For more, check out her website, The Warm Fruit, or follow her on Twitter.

Kari has written 16 articles for us.

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