Kenya: Decriminalising same sex conduct in Africa – Part I

A deep dive into Kenya ruling from Kari Mugo

Much is made of the framing of constitutions, their intents, and ambitions. Equally as important is how they are brought to life. It is for this reason that courts throughout Africa are becoming a place of intrigue, as countries test their new democracies. In Kenya and Botswana, two similar cases that sought to decriminalise same sex conduct recently appeared before their respective courts with very powerful, yet vastly different outcomes. We begin this two-part essay in Kenya. 

Kenya promulgated its new constitution in 2010, culminating a two-decade-plus journey of review that sought to “focus on minority protection” and prevent “the misuse of power”, as Waruguru Kaguongo notes. A key feature of the constitution would be its empowerment of the judiciary. This muscle was flexed in 2017 when the country’s courts became the first in Africa to annul a presidential election over irregularities. For many across the continent, the ruling from the Supreme Court showed a judicial independence unheard of. 

Relying on a narrow idea of “national values” that the court said needed protection, it argued that the issue of homosexuality had been considered during the drafting of the 2010 constitution and the will of the Kenyan people expressed in Article 45 (2).

In tandem, Public Interest Litigation (PIL) has become a central part of Kenya’s civic space where institutions like the Katiba (meaning ‘constitution’ in Kiswahili) Institute are leading the way. Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) activists are also using PIL to make gains in recognition and protection of basic rights; from the rights for transgender individuals to change their names on official documents to the right to register organisations working on LGBTI issues. 

Building on a successful history of PIL, activists had hoped to repeal Sections 162 and 165 of the country’s Penal Code that criminalises same sex relations along with a host of other sexual activity that falls under the broad banners of “carnal knowledge against the order of nature” and “gross indecency.” The Katiba Institute appeared as Amicus Curiae (a friend of the Court) in the matter as had the Kenya National Commission on Human Rights, “an independent constitutional commission… [mandated] to promote and protect the observance of human rights in Kenya.”

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