Kenya’s High Court Sets Date to Announce Ruling on Legalization of Gay Sex

Mark your calendars for Feb. 22.

That’s when the Kenya High Court announced it would issue its ruling on whether to decriminalize homosexuality. Under Sections 162 and 165 of its penal code, individuals convicted of “sexual acts against the order of nature” face up to 14 years in prison.

Advocates with Kenya’s National Gay and Lesbian Human Rights Commission (NGLHRC) argue the colonial-era law violates constitutionally mandated rights to privacy and dignity. Under the 2010 Kenyan Constitution, they argue “all citizens in Kenya [are protected] regardless of their sexual orientation and gender identity.”

A three-judge bench heard arguments in February and March. The High Court did not set a timeline for its ruling, which was rumored to be issued by the end of the year.

The date was finally set on Thursday. Earlier the same day, the court allowed both sides to submit additional statements on how a historic Sept. 6 ruling from the Indian Supreme Court decriminalizing sodomy might apply to Kenya’s law. In a unanimous decision, judges with India’s highest court ruled a “consensual sexual relationship between two consenting adults… cannot be said to be unconstitutional.”

LGBTQ advocates say they are “encouraged” by that ruling.

“It is the very same fight that we are fighting here in Kenya,” Kari Mugo, operations manager at NGLHRC, told Reuters earlier this year. “We both have these old colonial laws but also have these modern constitutions that speak for equality, so we are really hopeful that what we are seeing in India will be replicated here.”

Currently, Kenya is one of more than 70 countries that outlaw homosexuality.

Critics of the sodomy ban claim, though, that it does more than criminalize same-sex relationships. According to NGLHRC, it has fielded more than 3,000 cases of “murder, sexual assault, mob violence, blackmail, and extortion” against LGBTQ people since 2013.

Although an estimated 98 percent of Kenyans oppose homosexuality, momentum is on the side of the LGBTQ community.

Earlier this year, the Kenya Court of Appeal ruled that forced anal exams used to “prove” an individual’s homosexuality are unconstitutional. In September, Justice Wilfrida Okwany of the High Court temporarily lifted a ban on the lesbian film Rafiki in order to ensure it could qualify for consideration at the Academy Awards.

“I am not convinced that Kenya is such a weak society whose moral foundation will be shaken by simply watching a film depicting gay themes,” she said.

Rafiki became a massive smash during its one-week qualifying run. After playing to packed movie-houses in the capital of Nairobi, it became the second highest-grossing Kenyan film in history, earning over $33,000. Given that the average monthly wage in Kenya is $76, that would be more like $372,000 in the United States.

In the wake of that film’s historic embrace, LGBTQ advocates say it’s time for Kenya to take another step forward.

“These colonial legacy laws undermine LGBTQ people’s fundamental rights as enshrined in our Constitution and ostracise them from society, causing misery and isolation, and devastating their lives,” claimed Njeri Gateru, executive director of NGLHRC, in a statement. “We believe that this wrong must be put right. There is no place in our proud Kenyan democracy for old discriminatory laws.”