Today was a big day for the LGBTQ community in Kenya, but it’s ended in a bit of an anti-climax.
It was today that it was hoped that the High Court of Kenya would rule that the criminalisation of homosexuality was unconstitutional, however the Court has postponed its decision until 24 May 2019.
The legal position
It’s currently illegal to be gay in Kenya.
Sodomy is criminalised under section 162 of the Kenyan Penal Code, and is punishable by up to 14 years imprisonment. Any other sort of sexual contact or intimacy between men is criminalised under section 165 of the Kenyan Penal Code, and is punishable by up to five years imprisonment. There are no protections in place in relation to discrimination on the basis of sexuality.
Kenya is a socially conservative country - the subject of homosexuality is generally considered taboo. Political and religious leaders regularly make public statements against LGBTQ people. There have been several reported instances of homophobic violence.
The legal battle
LGBTQ activists in Kenya have been waging a legal campaign for section 162 of the penal code to be repealed so that homosexuality can be decriminalised.
A petition was presented to the High Court of Kenya to repeal section 162 on the basis that it is a violation of Kenyans’ constitutional rights to equality, dignity, and privacy.
Submissions in this matter were heard by the court on 25 October 2018, and much of the discussion focused on the decision by the Indian Supreme Court – which legalised gay sex in India by overturning Section 377 – and its relevance to Kenya. Both countries have shared the law – which dates back to the days of British colonial rule – that criminalises “sexual acts against the order of nature”.
Ahead of the ruling, a spokesperson for NYARWEK — a network of organisations supporting the LGBTQ community in Kenya – confirmed that they were feeling confident that the High Court would rule in favour of decriminalisation.
“It’s very positive…” advised the spokesperson. “Not only is there the precedent from India, but the ruling by the Court of Appeal against anal examinations, and the court-ordered lifting of the ban against LGBTQ film Rafiki all gives us confidence.”
In March 2018, the Court of Appeal in Kenya ruled that conducting forced anal examinations on people who are accused of same-sex relations is unconstitutional. This ruling reversed a 2016 High Court decision that had upheld the Kenyan authorities’ use of forced anal exams to attempt to provide evidence of homosexual conduct.
The film Rafiki is a Kenyan film about a lesbian romance. It was banned in Kenya on the grounds that it promoted homosexuality. However, on appeal, a judge lifted the ban in September 2018, and the film was able to be screened.
The latest update
The High Court of Kenya was expected to announce its ruling in this matter on 22 February 2019, however Justice Chacha Mwita announced that the ruling had been postponed to 24 May 2019.
“You may not like the news I have today…one of our colleague is still on leave…” said Justice Mwita, as he apologised on behalf of the bench to the packed courtroom.
The reason given by Justice Mwita for the delay is that the Court is not yet ready to make a decision. He said some of the judges in the case were busy. He added that the huge volumes of files sent to the three-judge bench was also a factor.
The wait continues.