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This week, the Kenyan Court will be hearing a matter, at Milimani Law Courts in Nairobi, to challenge the Colonial Penal Codes that in essence serve to criminalize homosexuality and target the LGBTI community. The case has been brought by the National Gay and Lesbian Human Rights Commission (NGLHRC).

The case seeks to enforce the equality provision in Chapter Four of the Constitution.

The NGLHRC, represented by renowned Senior Counsel Paul Muite, will argue that sections of the Kenyan Penal Code are in breach of the Constitution and deny basic human rights to Kenyan citizens. The case, filed in 2016, seeks to strike down sections of the Kenyan Penal Code that criminalize consensual same-sex relations between adults.

The disputed provisions were introduced by British in 1897 and make vague reference to “carnal knowledge against the order of nature” and “gross indecency.”

While the laws criminalize a broad range of consensual activities that cannot produce offspring, they are enforced selectively to target members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community. The case seeks to have the equality provided for in Chapter Four of the constitution upheld by law enforcers.

Eric Gitari, NGLHRC Executive Director:

We have a constitution that carries the will of the Kenyan people and that says no one should be discriminated against, yet these laws do just that.

These laws far from being about morality are used to justify discrimination, violence, harassment and invasive intrusion of the private lives of Kenyan citizens.

The case will be heard alongside a similar petition by the Gay and Lesbian Coalition of Kenya (GALCK) and Nyanza Rift Valley and Western Kenya (NYARWEK) LGBT coalition seeking to have these provisions declared unconstitutional.

SOME FACTS :

There are 72 countries across the world that criminalizes same-sex relationships, many of these are former colonies with relics of colonial laws.

In April 2015, a three judge bench of the Constitutional Division of the High Court in
Nairobi unanimously ruled that sexual orientation is protected from discrimination in the constitution of Kenya adding “ 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.”

A 2014 ministerial report showed that 595 individuals had been arrested and charged under Sections 162, 163 and 165 of the Penal Code between 2010-2014.

Since 2014, the National Gay and Lesbian Human Rights Commission (NGLHRC) has
received over 1,000 reports of violations against LGBT individuals through its daily legal aid centre. NGLHRC has found that current punitive laws against expressions of same sex intimacy are often used to justify these violations.

Cases reported have been from a multitude of areas in the country, including: Nairobi, Turkana, Kakuma Refugee Camp, Embu, Meru, Nyeri, Mombasa, Isiolo, Garissa, Kitui, Kisii, Kericho, Migori, Nakuru, Kisumu, Kwale, Eldoret, Thika, Kiambu and Lamu.

The majority of incidents reported to the Commission are instances of blackmail and
extortion. The Commission also receives reports of violence (sexual assault, physical
assault, verbal abuse and threats of violence), murder, suicide or attempted suicide, cyber bullying, denial of services or access to premises, disinheritance, eviction from rental property, dismissal from employment, expulsion from school and forced relocation.

Kenya’s current Penal Code is a colonial import and legacy of British Colonial Law first introduced into Kenya in 1948 and last revised in 1967. The Constitution of Kenya, promulgated in 2010 represents the supreme law of the land and supersedes all other laws.

There have been similar cases challenging the constitutionality of sections of the PenalCode criminalizing homosexuality. These have included, Belize, Botswana Cape Verde,Djibouti, Guinea Bissau, India, Mozambique and South Africa where repeal of the law was successful.

@MelanieNathan1
nathan@AfricanHRC.org

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