Kenya: LGBT Kenyans’ Patience Has Gone Unrewarded

Neela Ghoshal is Senior Researcher in the LGBT Rights program at Human Rights Watch.  Follow @NeelaGhoshal

Kenya’s High Court on Friday postponed a much-awaited decision on a colonial-era law that has long deprived one group of Kenyans of uhuru, or freedom, promising to revisit the issue in May. Criminalization of gay sex remains on the books.

Disappointment reigned among Kenya’s LGBT communities and the human rights advocates who have supported their crusade for equality. The petition challenging the constitutionality of Kenya’s anti-homosexuality laws was filed in 2016, but activists have been planning for this moment for a decade. They built up to it by documenting human rights violations against LGBT Kenyans; galvanizing public debate; conducting targeted outreach to groups including the police, the media, and religious leaders; and filing other constitutional challenges on LGBT-related issues to develop precedent.

Their work may yet pay off. But the moment of relief has yet to come. Kenya’s High Court was asked to find sections 162 and 165 of the penal code, which punish “carnal knowledge of any person against the order of nature” and “indecent practices between males” with 14 years and five years in prison, respectively, to violate constitutional rights to equality, nondiscrimination, human dignity, security, privacy, and health.

The judges said they had been unable to finish working through the many pages of submissions from both sides, with one judge, Chacha Mwita, telling the packed-to-the-brim courtroom, “The files are above my height. … We are still working.” […]

For the Kenyan petitioners—the Gay and Lesbian Coalition of Kenya, the National Gay and Lesbian Human Rights Commission, and the Nyanza, Rift Valley, and Western Kenya Network, along with several individuals—India’s ruling decriminalizing same-sex conduct last September stood out as a particularly significant precedent. Kenya’s penal code was essentially a copy-and-paste job by British colonizers who’d first imposed unnatural offenses laws on their erstwhile Indian subjects and then imported the Indian penal code to other parts of the British Empire.

The Kenyan activists seized on the India ruling, introducing it into evidence in their own constitutional challenge. “[H]omosexuality is a completely natural condition, part of a range of human sexuality,” the Indian Supreme Court found. Moreover, it said, “Our ability to survive as a free society will depend upon whether constitutional values can prevail over the impulses of the time,” such as “dogmatic social norms” and “bigoted perceptions.” Kenya’s courts have previously made use of international precedent on LGBT rights: In the 2015 ruling on the gay and lesbian commission’s registration, the court, in finding that sexual orientation cannot justify discrimination, cited the 1998 South African ruling that decriminalized same-sex conduct. Read more via HRW