Could Kenya be next? High Court sets date to rule on gay sex ban

Members of Kenya’s beleaguered LGBT community will finally know if their currently illegal status will change early next year.

The Kenya High Court in Nairobi has announced it will, on 22 February, 2019, deliver a ruling on the landmark case challenging sections of the Penal Code that make consensual same-sex acts between adults illegal.

Under the Penal Code, these acts are punishable with up to 14 years in prison. The case was brought to the High Court by the National Gay and Lesbian Human Rights Commission (NGLHRC), an independent human rights body that provides free legal aid services to LGBT people.

In a similar case, the Indian Supreme Court recently ruled that sections of the Penal Code banning same-sex acts were unconstitutional. The NGLHRC has urged the High Court justices to consider that ruling in their deliberation of the Kenyan matter.

The organisation says that since its inception in 2013 its legal aid center has received over 3,000 incidents of violations against LGBT individuals. These include murder, sexual assault, mob violence, blackmail and extortion. The NGLHRC argues that the disputed sections of the Penal Code are used to justify violence against LGBT people by criminalising their identities.

Kenya’s Penal Code is a holdover from its colonial era and like many former British colonies retains anti-buggery laws that make vague reference to “carnal knowledge against the order of nature” and “gross indecency.”

“As lawyers, we believe in the equal protection of the rule of law and in the superior legal framework of the Kenyan Constitution,” said Executive Director of NGLHRC, Njeri Gateru.

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

The case was heard by a three judge bench on 22 and 23 February and and 1 March, alongside a similar petition brought forward by the Gay and Lesbian Coalition of Kenya (GALCK) and Nyanza Rift Valley and Western Kenya (NYARWEK).

In March 2018, the NGLHRC won a case at the Court of Appeals challenging the use of forced anal examinations to determine the sexual orientation of men suspected of being gay.

More than 30 countries in Africa continue to criminalise homosexuality in some form.