Kenya High Court Upholds Law That Criminalizes Gay Sex

In a blow to the LGBTQI movement in Africa, Kenya’s High Court ruled yesterday (Friday May 24) that a colonial-era law banning same-sex relations should remain in place.

Same-sex relations have been banned since the British colonized Kenya in the late 19th century. Kenya’s penal code criminalizes “carnal knowledge against the order of nature.” Anyone found engaging in same-sex relationships could face up to 14 years in prison.

In declining to decriminalize same-sex relations, the Kenya High Court said there was not enough evidence of discrimination against the LGBTQI community and therefore it upheld the ban.

In a ruling delivered by Justices John Mativo, Roselyne Aburili and Chacha Mwita, it was said that: “…there is no substantial evidence to show that the petitioners are discriminated and their rights violated. Evidence submitted showing that LGBT people have been denied healthcare services on the basis of their sexuality were general statements that did not meet the burden of proof.”

LGBTQI campaigners in the country have been fighting to have the law struck out but have faced a long wait after several postponements by the courts since the case was first brought in 2016 to repeal sections of the Kenyan penal code.

And the decision was not unexpected.

Before the ruling, Waruguru Gaitho, a human rights lawyer at the National Gay and Lesbian Human Rights Commission (NGLHRC), had said: “We are prepared for it to be a protracted struggle. We are well aware that the court process is very long and we are well aware that this is a heavily contested issue. Allows multiple appeals. So, we will continue to make our case for equality.”

Thirty-eight out of 55 African countries have enacted laws that make it illegal to be gay. In Somalia and South Sudan it is punishable by death. In Nigeria, it carries a 14-year prison term, and 30 years in Tanzania.

Despite this, activists on the continent are recording small wins.

In several African countries, such as Namibia, Botswana, Kenya, Uganda and Cameroon, the courts have ruled positively in favor of LGBTQI people, and more cases are planned or are currently being reviewed.

Angola’s parliament adopted a new penal code on January 23 for the first time since it gained independence from Portugal in 1975. That paved the way for lawmakers to remove the provision characterizing same-sex relationships as “vices against nature,” according to Human Rights Watch.

“In casting aside this archaic and insidious relic of the colonial past, Angola has eschewed discrimination and embraced equality,” the agency said.

Neighboring Mozambique removed anti-gay laws in 2015, while São Tomé and Cape Verde have also abolished laws criminalizing gay relationships.

And in Botswana, for the first time in the country’s history, a transgender man was legally recognized as male. After a lengthy 10-year battle, the High Court demanded the government change the gender on his identity card from female to male. The court stated that the Botswana’s Registrar of National Registration had violated the man’s basic human rights. A few months later, another landmark case in Botswana saw the gender of a transgender woman legally recognized.

While Kenya is still largely a deeply conservative and religious society, its courts has shown some independence in recent years regarding LGBTQI matters.

Last year, an appeals court in Mombasa ruled that forced anal exams on people who are suspected of same-sex activity are unconstitutional, following the arrest and forced anal exams of two men in 2015. The decision reversed a 2016 court ruling.

Later that year, a Kenyan court temporarily lifted a ban on the controversial film, Rafiki, which told the story of a romantic lesbian relationship. The ban was imposed by the Kenya Film Classification Board, which said the film was “restricted due to its homosexual theme and clear intent to promote lesbianism in Kenya, contrary to the law.” In allowing the film to be screened to willing adults, the judge said that Kenya is not a weak society whose morals would be weakened by watching a gay-themed movie.