Kenyan Court Postpones much anticipated ruling on Criminalization of Homosexuality

The much anticipated ruling in the case challenging the Kenyan anti-Homosexuality Clauses of the Penal Code which criminalizes homosexuality has been postponed.

Eric Gitari v Attorney General & another (Petition no. 150 of 2016), brought by the National Gay and Lesbian Human Rights Commission (NGLHRC) challenges Sections 162 a) c) 163, 165, of the Kenyan Penal Code.  Activists and human rights defenders in Kenya and around the world have been waiting anxiously for months for the ruling which had been set for today.  The ruling was expected to be handed down by the Court today.

The Judge Chacha Mwita noted:

“The files are above my height… we are still working,” – noting one of the Judges was on leave.

“We plan to meet in April if all goes well and see whether we can come up with a decision. You do not appreciate what the judges are going through.”

The case was filed in 2016 and after many postponements argument was heard during February of 2018. The Kenyan Court has subjected this case to constant postponements.

Kenya’s High Court has heard the arguments in this case, challenging parts of the penal code seen as targeting the lesbian, gay, bisexual and transgender communities. The National Gay and Lesbian Human Rights Commission argues that sections of the code are in breach of the constitution and deny basic rights by criminalising consensual same-sex relations between adults. The commission’s executive director, Eric Gitari, has noted in a past statement that parts of the penal code are used to ” justify violence against lesbian, gay, bisexual and transgender people in the East African nation.”

In effect the sexuality of LGBTI Kenyans is criminalized through this legislation and the application of the Kenyan Penal Code which criminalizes “carnal knowledge against the order of nature.” This statute is interpreted as prohibiting any consensual same-sex sexual activity. Violators of the statute face a maximum penalty of 14 years imprisonment if convicted. A separate statute specifically criminalizes indecent acts between men. Penalties range between 5 to 21 years imprisonment

Apparently there is no indication as to which way the Court will rule. The ruling is now postponed to May 24, 2019.

“To say we are disappointed would be an understatement,” the National Gay and Lesbian Human Rights Council (NGLHRC), one of the petitioners, wrote on Twitter.

Prominent Kenyan commentator Patrick Gathara slammed a “sad, sad day” for the judiciary, describing the postponement as “ludicrous”.

Over 30 countries criminalize homosexuality on the Continent of Africa. Kenya prescribes prescribes particularly harsh punitive measures.  Anti-homosexuality sentiment is rife in Kenya with most of society stigmatizing LGBTI individuals and same-sex relations, considering such a taboo and a western import. As a result of such criminalization and societal homophobia, LGBTI individuals and those perceived as such lack protection under the law, are demonized, and are exposed to discrimination, abuse and violence by State actors, community and family alike. Underpinned by criminalization, Kenyan LGBTI individuals face discrimination in every area of their lives.

The vast majority of Kenyans believe that the anti-homosexuality laws are justified. To find for unconstitutionality may not be a popular ruling. The Justices have had ample time to decide on this case and this seems like a stalling which may indicate a fear or uncertainty in rendering a ruling. Yet at the same time it may well be good news that the case is getting the full attention of the Court – with what hopefully turns out to be a well reasoned and appropriate ruling.

SEE Other reports for details at Court: HERE

Links: 

[1]This petition is available at http://kenyalaw.org/caselaw/cases/view/122862/.

[1]Melanie Nathan, Kenyan Court to Hear Case That Challenges Anti-LGBTI Penal Codes, Oblogdee (Feb. 20, 2018), , https://oblogdee.blog/2018/02/20/kenyan-court-to-hear-case-that-challenges-anti-lgbti-penal-codes/.

[1]Associated Press, Rights group challenges Kenya’s anti-gay laws in court (Feb. 22, 2018), available at https://www.news24.com/Africa/News/rights-group-challenges-kenyas-anti-gay-laws-in-court-20180222

BY MELANIE NATHAN

Commissionermnathan@gmail.com
Divorce and Family Mediation: www.privatecourts.com
Advocacy:  African Human Rights Coalition
Speaker: www.melnathan.com
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