In what is being described as “a blow for human rights”, the Kenya high court on Friday ruled that laws targeting lesbian, gay, bisexual and transgender (LGBT) people do not breach the country’s Constitution.

The challenge to the constitutionality of section 162 of the Penal Code — which carries a maximum 14-year prison sentence for those convicted of same-sex relations — was brought before the court by Kenyan human rights activists.

The three-judge bench ruled that the laws do not in any way violate the rights of LGBT Kenyans.

The judgment follows a postponement of a ruling in February this year.

In its judgment, the court stated that the petitioners failed to prove how the existence of these sections violated their right to health, dignity and privacy.

Njeri Gateru, the executive director of Kenyan National Gay and Lesbian Human Rights Commission (NGLHRC) — and the main petitioner in the case — said: “NGLHRC has seen time and time again how these old colonial laws lead to the LGBT community suffering violence, blackmail, harassment and torture. 

 They devastate people’s lives and have no place in a democratic Kenyan society.”

A Human Rights Watch report authored by Alok Gupta, titled This Alien Legacy — The Origins of “Sodomy” Laws in British Colonialism , found that Section 377 was “a model law” introduced by the British in 1861 and then exported to its other colonies.

The report argued that many of the countries that outlaw same-sex relations do so “because they once were British colonies”.

“They brought in the legislation … because they thought ‘native’ cultures did not punish ‘perverse’ sex enough. Section 377 was … a colonial attempt to set standards of behaviour, both to reform the colonised and to protect the colonisers against moral lapses. It was also the first colonial ‘sodomy law’ integrated into a penal code… Its influence stretched across Asia, the Pacific Islands and Africa - almost everywhere the British imperial flag flew.”

The list of African countries that inherited versions of this law is expansive: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia and Zimbabwe.

“Our Constitution, the supreme and homemade law of our land, should be respected and upheld as sacrosanct,” Gateru added. “The Court has missed an opportunity to help ensure a future free from the intrusion of the state in our private lives, and to turn the tide for the LGBT community here at home in Kenya, and on the wider African continent.”

Along with other activist groups, NGLHRC intends “to continue to pursue redress through the courts” and will be filing an appeal in the Court of Appeal. </s> A Kenyan appeals court has struck down the use of forced anal testing in homosexuality cases. Rights activists are hailing the verdict as a key victory that could have a ripple effect in the region.

 

 The court of appeals in the coastal city of Mombasa ruled Thursday that the forced anal testing of suspected gay men is unlawful. The judges deemed the practice a violation of human rights.

Njeri Gateru, the acting director of Kenya's National Gay and Lesbian Human Rights Commission, which filed the case, describes her reaction.

“Excited, happy, affirmed mostly," she said. "We just honestly think that it’s about time that the dignity of LGBT people is preserved as it should be, as enshrined in the constitution.”

Homosexuality is illegal in Kenya, punishable by up to 14 years in prison. Authorities have routinely subjected men arrested under the law to anal examinations.

Thursday's verdict stems from a 2015 case. In 2015, Mombasa police obtained a court order to force two men to undergo anal exams and HIV testing at a local hospital. The two men had been arrested and charged with unnatural sex.

The National Gay and Lesbian Human Rights Commission challenged the court's decision on the grounds that anal exams are cruel, inhumane and degrading. The commission also argued that the exams were a breach of medical ethics, both in Kenya and internationally.

Neela Ghoshal is Senior Researcher in the LGBT Rights program at Human Rights Watch. She called Thursday’s ruling “historic.”

“The appeal has made it very clear that biases against someone’s sexual orientation cannot be a reason to subject them to this really quite medieval form of torture, and I think that there is a good chance that this ruling will serve as precedent in other countries as well," she said.

She says activists in Uganda plan to file a constitutional challenge against the use of anal exams, and predicts that activists will do the same in other African countries like where the exams have not been banned.

Homosexuality remains far from accepted in Kenya.

Dr. Ezekiel Mutua serves as the chief executive officer of the Kenya Film Classification Board. He’s more popularly known as the country’s morality cop.

“Gay people are human beings, and therefore to the extent that someone could be subjected to anal tests, I think that’s very wrong and that was a violation of their rights. I would actually support them in that regard, but that does not mean that homosexuality is right," he said.

In February, Kenya’s High Court began hearing of arguments in a potentially landmark case that seeks to repeal Section 162 of the colonial-era penal code. The plaintiffs argue that the state cannot criminalize consensual same-sex relations between adults. It is the first time that a Kenyan court has considered such an argument. </s> Kenyans in Twitter made Netherlands Ambassador to Kenya Frans Makken take down a tweet expressing his disappointment in the refusal by the High Court to repeal Section 162 of the Penal Code decriminalizing gay sex.

In a tweet, the envoy said: ““Very disappointing: High Court of Kenya declines to repeal the 162 section of the penal code which criminalizes same sex conduct as this section is not deemed unconstitutional.”

Tweeps quickly descended on the ambassador with insults forcing him to delete the tweet.

Some noted that gayism was “Unkenyan” and those fighting to decriminalize the act are just going through a phase.

“But gay people are just playing victims. Just blowing a fanfare to demand sympathy.A thread…1. Have you been discriminated in any way based on your orientation? 2. Have you been required to state your sexual preferences anywhere in Kenya?” Apale posed.

“#Repeal162 is Full of foreigners. There are no actual Gays and Lesbians in Kenya because its UNKENYAN. This is a foreign campaign in our country. The few gathering momentum here are a result of peer pressure. I have been there before so I can STATE WITH CONFIDENCE,” Nduta said.

“To the LGBT community, you can appeal the decision to the Court of appeal and up to the Supreme. While at it, please accept the fact that homosexuality is a foreign concept in Kenya that might take eons to become morally acceptable,” Kimberly Sang wrote.

A three judge-bench of Justices Chacha Mwire, Roselyn Aburili and John Mativo while dismissing the case noted that it is important that cultural values are respected.

In their unanimuos decision that had the LGBTQ community jittery for the better part of Friday, Justice Aburili said, “Acknowledging cohabitation among people of the same sex (where they would ostensibly be able to have same-sex intercourse) would indirectly open the door for unions (marriages) of people of the same sex.”

Email your news TIPS to news@kahawatungu.com or WhatsApp +254708677607. You can also find us on Telegram through www.t.me/kahawatungu </s> Kenya's High Court on Friday declined to decriminalize same-sex relations, which can carry a prison sentence of up to 14 years, a decision that came as a blow to the LGBT+ community in the East African nation.

Three judges unanimously upheld article 162 and 165 of Kenya's penal code.

"The petitioners have failed to prove that the provisions are discriminatory. There is no evidence to show that the petitioners were discriminated and their rights violated as they sought healthcare," judge Chaca Mwita told the press.

The High Court judges said the two articles in question did not apply exclusively to the LGBT community and that anyone found in breach of the law in that regard could be punished.

The articles in question are a hangover from British colonial rule in Kenya and deem sodomy and same-sex acts a crime against nature.

The lawsuit was originally brought before Kenya's judiciary back in 2016 by pro-LGBT+ rights groups who argued the laws were dated, discriminatory, fueled homophobia and contradicted the constitution, which says all people are equal in the eyes of the law.

Article 162, which pertains to acts "against nature" can carry a sentence of up to 14 years in prison.

The ruling was originally slated to take place on Feb. 22 but was postponed last minute due to the unanticipated workload on the case, according to Mwita.

The complainants now have the option to bring the case to the Supreme Court, the highest rung of judicial power in Kenya. However, once there, the case could take years to conclude.

In 2018, Kenyan authorities banned the screening of the film "Rafiki," a lesbian romance film, and the country's president, Uhuru Kenyatta, has previously said gay rights were a "non-issue" in the country.

Some 28 of the 49 sub-Saharan nations criminalize homosexual relations. Gay people in countries like Sudan or northern Nigeria can even face the death penalty for their sexuality, although these punishments are rarely enforced.

Countries like Angola, Mozambique and Seychelles do not criminalize homosexuality while countries like Chad and Uganda have recently tried to strengthen laws against it. EFE-EPA </s> Several gay Kenyans have been prosecuted in the past few years

Kenya's High Court has ruled against campaigners seeking to overturn a law banning gay sex.

The judges rejected claims that the colonial-era law violated the new constitution, which guarantees equality, dignity and privacy.

The penal code criminalises "carnal knowledge against the order of nature" - widely understood to refer to anal intercourse between men.

Gay sex is punishable by up to 14 years in prison.

Kenya's National Gay And Lesbian Human Rights Commission says it has dealt with 15 prosecutions under the penal codes in 2018, with no convictions.

But it had argued for the law to be scrapped because it gives rise to a climate of homophobia.

In 2016, LGBT rights activists filed a case with Kenya's High Court saying that homosexual relations should be decriminalised. They argued that the state has no business regulating matters of intimacy.

The case wasn't heard until February 2018 and a verdict was initially expected in February 2019 - but delayed until Friday.

What did the judges say?
• "We find the impugned sections (of the penal code) are not unconstitutional. We hereby decline the relief sought and dismiss the consolidated petition," said presiding judge Roselyne Aburili.
• The constitution still outlaws same-sex marriage but allowing gay sex would "open the door for same sex unions."
• There was "no conclusive scientific proof that LGBTQ people are born that way" she added.

What has the reaction been?
• "The High Court of Kenya legitimizes homophobia by upholding a colonial culture of exclusion, discrimination and violence against minorities" - The Kenya Human Rights Commission.
• "We will appeal. We expect that the court of appeal will overturn this erroneous decision which in our view is very biased," said Eric Gitari, one of the petitioners.
• Catholic bishop Alfred Rotish welcomed the ruling. "We cannot be another Sodom and Gomorrah," he told Reuters news agency.

What's the gay scene like in Nairobi?

There are unofficial gay clubs and advertised events in Kenya's cities.

"The LGBT community in Kenya have created an amazing tribe and culture for themselves," says Brian Macharia, an activist for the Gay and Lesbian Coalition of Kenya.

"There is a ballroom scene, a drag scene - vibrant bisexual community, a lesbian scene. Young people are driving the community forward through social media."

Gay men also use dating apps - although visitors with international roaming do get a warning about the legal status when logging in while in Kenya.

The judges ruled that while they respected changes to laws banning gay sex in other countries, it was the court's duty to respect prevailing Kenyan values.

Many Christian and Muslim groups support the current law, and the Kenyan attorney-general had argued against decriminalisation.

Many African countries still enforce strict laws governing homosexuality, in most cases a legacy of laws imposed by the colonial rulers. </s> (Nairobi) – A Court of Appeal in Mombasa, Kenya, ruled on March 22, 2018, that conducting forced anal examinations on people who are accused of same-sex relations is unconstitutional, Human Rights Watch said today. It was a resounding victory for lesbian, gay, bisexual, and transgender (LGBT) rights activists in Kenya and beyond.

The ruling reversed a 2016 High Court decision that had upheld the Kenyan authorities’ use of forced anal exams to attempt to provide evidence of homosexual conduct. The National Gay and Lesbian Human Rights Commission (NGLHRC), a nongovernmental organization based in Nairobi, filed a constitutional challenge after police arrested two men in Kwale County in February 2015 on charges of homosexuality, and subjected them to forced anal exams, HIV tests, and Hepatitis B tests at Mombasa’s Madaraka Hospital.

“The ruling that forced anal exams violate Kenya’s constitution is of tremendous significance,” said Neela Ghoshal, senior LGBT rights researcher at Human Rights Watch. “The ruling affirms the dignity of the two Kenyan men who were subjected to these horrific exams, and it reinforces the understanding that the constitution applies to all Kenyans, regardless of their sexual orientation or gender identity.”

The petitioners contended that forced anal testing is cruel, inhuman, and degrading treatment that can amount to torture. The exams usually involve doctors or other medical personnel inserting their fingers, and sometimes other objects, into the anus of the accused. In other cases, victims are ordered to strip naked and bend over or lie down with their feet in stirrups while doctors “visually” examine their anal regions.

Momentum has built in opposition to forced anal exams in recent years, in the countries where law enforcement makes use of the exams, and internationally. The Independent Forensic Experts Group has found that the exams, which are based on long-outdated 19th century medical theories, are both medically worthless and a severe violation of medical ethics. Numerous United Nations (UN) agencies have opposed forced anal exams, and the Committee Against Torture has called on several countries, including Cameroon, Egypt, and Tunisia, to stop conducting them.

In October 2017, the World Medical Association adopted a resolution condemning forced anal exams and calling on doctors to stop conducting them. National medical associations in Lebanon, Tunisia, and most recently in Kenya have also criticized the exams. Tunisia, during its Universal Periodic Review at the UN Human Rights Council in September, accepted a recommendation to prohibit the use of forced anal exams, although it has not yet taken steps to do so.

Other countries that have conducted forced anal exams on people accused of homosexuality in the last eight years include Tanzania, Turkmenistan, and Zambia.

“With this ruling, the judges are saying that we all deserve to be treated with dignity and afforded our basic rights, as enshrined in the Kenyan Constitution,” Njeri Gateru, head of Legal Affairs at NGLHRC, said in a statement.

Activists hope that the ruling will lend support to other civil rights cases pending in Kenya’s courts. In 2016, NGLHRC, along with the Gay and Lesbian Coalition of Kenya (GALCK) and the Nyanza Rift Valley & Western Kenya Network (NYARWEK), filed a constitutional challenge to sections 162(a) and (c) and 165 of Kenya’s penal code, which criminalize consensual same-sex relations. The groups contend that these colonial era laws prohibiting “carnal knowledge against the order of nature” violate the rights of LGBT Kenyans and others to privacy, equality and non-discrimination. A ruling is expected in the coming months.

“This landmark ruling places Kenya’s courts at the vanguard in affirming that the government cannot deny LGBT people their basic rights,” Ghoshal said. “No one should be subjected to forced anal exams, and no one should be deprived of their rights because of who they are or whom they love.” </s> The High court has declined to repeal section 162 of the penal code.Judges Chacha Mwita, Roselyne Aburili and John Mativo made a unanimous decision to decline.

“None of the petitioners tendered evidence to prove denial of the rights to health on the basis of their orientation. Only general statements which do not meet the burden of proof.

“On right to non-discrimination, the Constitution only prohibits unfair discrimination. In this case, the language of section 162 targets “Any person” and not a particular group with a particular sexual orientation, as claimed by the petitions,” the judges ruled.

Read:Catholic Run Children’s Home Faulted for Covering up Child-Abuse for Over a Decade

“We therefore decline to issue the orders as sought by the petitioners. The phrase in Section 162 (a) and (c) of Kenya’s Constitution] is clear,” said the judges

The National gay and lesbian rights commission through Eric Gitari had filed a suit to declare section 162 and 165 of the penal code unconstitutional.

The two sections, Gitari said that contravened the right to privacy for those affected. The gay and Lesbian Coalition of Kenya (GALCK), the National gay and Lesbian Human Rights Commission (NGLHRC) and the Nyanza Rift Valley and Western Kenya Network (NYARWEK) are enjoined in the suit.

Section 162 prohibits a person who has carnal knowledge against the order of nature; or has carnal knowledge of an animal.

Read Also:KWS “Sex And The City” Post Sends Twitter Into A Frenzy

“Any person who has carnal knowledge … against the order of nature; or has carnal knowledge of an animal; or permits a male to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for 14 years.”

Email your news TIPS to news@kahawatungu.com or WhatsApp +254708677607. You can also find us on Telegram through www.t.me/kahawatungu </s> Content provided by APO Group. CNBC Africa provides content from APO Group as a service to its readers, but does not edit the articles it publishes. CNBC Africa is not responsible for the content provided by APO Group.

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UN High Commissioner for Human Rights Michelle Bachelet on Friday expressed her disappointment at the decision of the High Court of Kenya to uphold a ban on consensual, same-sex relations between adults that dates back to the colonial-era.

The Court had been asked to review the constitutionality of Sections 162 and 165 of the Penal Code, which provide for criminal sanctions to be imposed on individuals convicted of consensual same-sex sexual conduct.

Human rights defenders have long argued that these provisions breach Kenya’s human rights obligations, and contribute to violence and discrimination against members of Kenya’s lesbian, gay, bisexual and transgender community.

“Criminalizing acts targeting certain individuals based on who they are and whom they love is inherently discriminatory. It also sends a dangerous signal to broader society and encourages hostility and even violence against LGBT individuals,” Bachelet said. “Denial of rights to education, healthcare, housing and employment can all be traced to the criminalization of same sex relationships.”

The High Commissioner noted that LGBT activists and their allies in Kenya have fought hard to secure greater recognition of the rights of members of the LGBT community. “My message to the people of Kenya is to fight on for greater equality for all, and never give up. The United Nations stands with you and joins you in your demands for dignity, equal rights and fair treatment.”

The decision of the Kenyan High Court stands in stark contrast to a series of recent decisions by courts and lawmakers in other countries in all regions of the world annulling criminal laws that affect same sex relationships. In the past five years, Angola, Belize, India, Mozambique, Nauru, Palau, the Seychelles, and Trinidad and Tobago have all decriminalized consensual same-sex sexual conduct.

Distributed by APO Group on behalf of Office of the UN High Commissioner for Human Rights (OHCHR). </s> High court judges in Botswana have ruled that laws criminalising same-sex relations are unconstitutional and should be struck down.

The ruling is a major victory for gay rights campaigners in Africa and comes after a setback in Kenya last month when a court rejected a bid to repeal similar colonial-era laws criminalising gay sex.

Homosexuality is illegal in most countries on the African continent. In several countries, gay people face life imprisonment or the death penalty.

Botswana is regarded as one of Africa’s most stable and democratic nations but homosexuality is outlawed under the country’s penal code of 1965.

In March, the court postponed a ruling on the issue after an unnamed applicant challenged two sections of the penal code under which offenders face a jail sentence of up to seven years.

Activists are hoping the government will do away with the oppressive laws that brand homosexuality as “unAfrican”.

“If this law is decriminalised it will be a positive thing for the community because it will protect their right to privacy and their right to express themselves the way they feel,” Matlhogonolo Samsam, from Botswana’s lesbian, gay and bisexual organisation (LEGABIBO), said before the ruling.

Activists launched the legal battle after the home affairs ministry rejected an application to register the LEGABIBO.

Outreach worker Thato Game Tsie said scrapping the anti-gay laws would help the community access healthcare and treatment more easily.

“There are many services we require as gay men that some nurses are not aware of, and if we go to a government hospital there will be those negative comments said to you,” Ms Game Tsie said. “So we just want to be free to access these services. I think it will be a great disappointment if we lose this.”

Kenyan judges rejected last year’s precedent in India, which legalised gay sex between consenting adults, as well as a series of other judgments across the Commonwealth and elsewhere, and said Kenya should make its own laws to reflect its own culture.

At the Botswana high court hearing in Gaborone in March, lawyers for the applicant said public opinion on same-sex relationships had evolved and employment laws now outlaw discrimination on grounds of sexual orientation.

In 2016 the country’s appeals court ruled that the government was wrong to refuse to register an organisation representing homosexuals and other minority sexual groups.

President Mokgweetsi Masisi had addressed a meeting on gender-based violence, saying there are “many people of same sex relationships in this country who have been violated and have also suffered in silence”.

“Just like other citizens, they deserve to have their rights protected,” he told the December gathering.

Angola, Mozambique and Seychelles have scrapped anti-gay laws in recent years.

In Tanzania, authorities in Dar es Salaam, the biggest city, have launched a series of crackdowns on gay people in recent years. In the most recent the city’s governor called on citizens to identify gay people so they could be arrested, forcing hundreds of people into hiding. – Guardian
The High Court of Kenya rules against a bid to strike down Section 162 and 165 of the Kenyan Penal Code, a sodomy law. The plaintiffs plan to appeal to the Court of Appeal.