Kenya's Court of Appeals on Thursday ruled that the use of forced anal exams used to determine whether homosexual men engaged in sex is illegal.

A day after the court ruled in favor of the lesbian and gay community, community members held an indoor meeting in Mombasa, to celebrate their victory and look at the way forward.

Speaking out

Esther Adhiambo was one of the participants. She is an officer at Initiative for Equality and Non-Discrimination. Adhiambo said the meeting was set to understand what it meant exactly to win such a case.

"We are human rights defenders, we understand. So how do we then trickle this down to the gays and transgender on the ground? So that was basically a collective of organizations that advance human rights for lesbians, gays and bisexuals in Mombasa," said Adhiambo.

She added that the court ruling had motivated gay people to speak openly about the pain of such medical tests which have for a long time been conducted on suspected gay and transgender people. "Most people were not coming out, but after the case went to court there were people who actually said that this was done to me. It is something that has been going on silently."

The National Gay and Lesbian Human Rights Commission (NGLHRC) took the case to court after two men were arrested in 2015 on suspicion of having sex.

Read more: Anti-gay sentiment on the rise in Africa

According to the men, authorities forced them to undergo anal examinations by hospital staff and security personnel. They also said authorities forced them to submit to HIV tests.

'Tremendous step'

The NGLHRC argued the tests violated the men's constitutional rights. A Kenyan court in 2016 ruled that such tests were constitutional and, as such, within the scope of use for authorities. Thursday's ruling overturned that decision.

"The ruling is a tremendous step not only in upholding the dignity of homosexuals who'd been subjected to the indignities of anal examinations but also to the rule of law in Kenya," said Eric Gitari, who heads the NGLHRC.

The court overturned a lower court's ruling that anal exams were legal

Some Kenyans from of the gay and lesbian community in Mombasa celebrated the win, saying that it meant a lot to them.

Kennedy Mwendwa was one of them. He said that they were not subjected to any form of violence. "Because of the community I come from, it’s important for people to know that you are not part and parcel of violence this means that they’re not going to be violated." Mwendwa said.

Esther Nelima, a program officer at Coast Sex Workers Alliance, said the decision will allow many gay people to visit health facilities because they will no longer be stigmatized by having to undergo anal examinations.

"We are human beings irrespective of what we do, irrespective of where we come from. We are entitled to those rights and we expect other people also to treat us the same the way we would also treat them," Nelima said.

State-sponsored homophobia

In Kenya, same-sex sexual activity is outlawed and punishable by 14 years in jail. Before Thursday's ruling, Kenya was one of eight countries that allowed forced anal exams.

The others are Cameroon, Egypt, Lebanon, Tunisia, Turkmenistan, Uganda and Zambia, according to Human Rights Watch.

Read more: Tanzania: Clampdown on gays creates climate of hate

"The violating examinations, which include being made to lie with legs up in a humiliating position and having instruments forced into your rectum, are widely accepted to have no medical merit," said NGLHRC.

The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) has listed Kenya on its list of countries that sponsor homophobia through its national laws and policy. The NGLHRC has also challenged Kenya's laws targeting homosexuality.

Countries that have legalized same-sex marriage 2001, The Netherlands The Netherlands was the first country in the world to permit same-sex marriages after the Dutch parliament voted for legalization in 2000. The mayor of Amsterdam, Job Cohen, wedded the first four same-sex couples at midnight on April 1, 2001 when the legislation came into effect. The new law also allowed same-sex couples to adopt children.

Countries that have legalized same-sex marriage 2003, Belgium The Netherlands' neighbor, Belgium, followed the Dutch lead and legalized same-sex marriage two years later. The law gave same-sex partners many of the rights of their heterosexual counterparts. But unlike the Dutch, the Belgians did not initially allow same-sex couples to adopt children. The Belgian parliament passed a bill granting them that right three years later.

Countries that have legalized same-sex marriage 2010, Argentina Argentina became the first Latin American country to legalize same-sex marriages when its Senate voted 33 to 27 in favor of it in July 2010. Argentina thereby became the tenth country in the world to permit gay and lesbian marriages. The South American country was not the only one to do so in 2010. Earlier in the year, Portugal and Iceland also passed same-sex marriage legislation.

Countries that have legalized same-sex marriage 2012, Denmark Denmark's parliament overwhelmingly voted in favor of legalization in June 2012. The small Scandinavian country had made headlines before when it was the first country in the world to recognize civil partnerships for gay and lesbian couples in 1989. Same-sex couples had also enjoyed the right to adopt children since 2009.

Countries that have legalized same-sex marriage 2013, New Zealand New Zealand became the 15th country worldwide and the first Asia-Pacific country to allow gay and lesbian marriages in 2013. The first couples were married on August 19. Lynley Bendall (left) and Ally Wanik (right) were among them when they exchanged vows on board an Air New Zealand flight from Queenstown to Auckland. France legalized same-sex marriage the same year.

Countries that have legalized same-sex marriage 2015, Ireland Ireland made headlines in May 2015 when it became the first country in the world to legalize same-sex marriage through a referendum. Thousands of people celebrated in the streets of Dublin as the results came in showing almost two-thirds of voters opting for the measure.

Countries that have legalized same-sex marriage 2015, USA The White House was alight in the colors of the rainbow flag on June 26, 2015. Earlier, the US Supreme Court ruled 5 to 4 that the constitution guaranteed marriage equality, a verdict that paved the way for same-sex couples to be married across the country. The decision came 12 years after the Supreme Court ruled that laws criminalizing gay sex were unconstitutional.

Countries that have legalized same-sex marriage 2017, Germany Germany became the fifteenth European country to legalize gay and lesbian marriages in June 30, 2017. The bill passed by 393 to 226 in the Bundestag, with four abstentions. German Chancellor Angela Merkel voted against the bill, but paved the way for its passage when she said her party would be allowed to vote freely on the measure only days before the vote took place.

Countries that have legalized same-sex marriage 2017 - 2018, Australia Following a postal survey which showed the majority of Australians were in favor of same-sex marriage, the country's parliament passed a law to legalize it in December 2017. As couples in Australia have to give authorities one month's notice of their nuptials, many of the first weddings took place just after midnight on January 9, 2018 - including that of Craig Burns and Luke Sullivan, pictured.

Countries that have legalized same-sex marriage 2019, Taiwan In May 2019, the island state became the first country in Asia to legalize same-sex marriage. The government survived an attempt by conservative opposition to water down the bill. Gay couples are able to offically register their marriage from May 24 onwards. President Tsai Ing-wen called it "a big step towards true equality."

Countries that have legalized same-sex marriage 2019, Ecuador The Andean state's top court ruled 5-4 to allow two gay couples to marry in June. The decision followed a ruling from the Inter-American Court on Human Rights affirming that countries should allow same-sex couples the right to marry. Author: Alexander Pearson



Diana Wanyoni contributed to this report.

ls/sms (AP, Reuters)</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…</s>A Kenyan appeals court on Thursday ruled unlawful the use of forced anal exams to test whether two men had gay sex, which is criminalized in the East African nation.

The earlier high court decision was unconstitutional and violated human rights, appellate court Judge Alnashir Visram said during the hearing in the coastal city of Mombasa.

Gay rights advocates cheered the decision, saying forced anal exams amount to torture. The Kenya Medical Association last year condemned their use.

"The ruling is a tremendous step not only in upholding the dignity of homosexuals who'd been subjected to the indignities of anal examinations but also to the rule of law in Kenya," said Eric Gitari, the executive director of the National Gay and Lesbian Human Rights Commission.

The commission represented the two men who were arrested in 2015 on suspicion of being gay and subjected to forced anal exams and HIV tests.

Human Rights Watch has said Kenya is one of at least eight countries that have used forced anal exams on suspected homosexuals since 2010, along with Cameroon, Egypt, Lebanon, Tunisia, Turkmenistan, Uganda and Zambia.

The new ruling undoubtedly will have an impact on those countries, Gitari said.

In Kenya, gay sex faces a penalty of up to 14 years in prison.

The lesbian, gay, bisexual and transgender communities in the East African nation have complained of harassment, which in some cases is violent. Gay people often are ostracized by families and communities and discriminated against when it comes to renting property and finding jobs.

Kenya's High Court last month began hearing arguments in a case that challenges parts of the penal code seen as targeting the LGBT community. The National Gay and Lesbian Human Rights Commission argues that the sections are in breach of the constitution and deny basic rights by criminalizing consensual same-sex relations between adults.

This version corrects to say the decision ruled the use of forced anal exams unlawful and that the men were subjected to the exams.</s>A court of appeals in Kenya yesterday ruled that forced anal examinations for gay men are contrary to the law.

Forced anal examinations have largely been used to ‘prove’ whether or not a man is gay in countries where homosexuality is criminalised.

The case came to the courts after two suspected gay men were arrested in 2015 and forced to undergo both anal examinations and HIV tests, in order to determine if they had engaged in consensual sex.

The men were represented by the National Gay and Lesbian Human Rights Commission in Kenya, an organisation that provides pro bono legal services to many in the community.

“We are thankful that the Appeal Court has put Kenyan citizens’ rights first,” said head of legal affairs Njeri Gateru.

“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.”

Gay sex has long been criminalised under Kenyan law, with a penalty of up to 14 years in prison.

The country’s High Court is currently considering a case that could decriminalise homosexuality.

Despite the progress in Kenya, other countries including Egypt and Tanzania reportedly continue to implement forced anal examinations for suspected gay men.

“Forced anal examinations amount to torture, and no one should ever be exposed to such a degrading and dehumanising experience,” said Jessica Stern, executive director of OutRight Action International.

“The Kenyan courts ruled in favour of international law and in favour of human dignity. Other countries should follow suit and put an end to this discredited practice.”

Kenya made international LGBTI news on a lighter note last year when an official blamed tourists for gay lions.</s>NAIROBI (Thomson Reuters Foundation) - In a rare win for gay rights campaigners in Kenya, its Court of Appeal on Thursday ruled that it is illegal to force people suspected of being homosexual to undergo anal examinations.

The landmark case was brought by the National Gay and Lesbian Human Rights Commission (NGLHRC) after two men were arrested in 2015 on suspicion of having gay sex, which is illegal in Kenya and punishable by 14 years in jail.

The men said they were subjected to forced anal examination by security personnel and a public hospital in Kenya’s coastal city of Mombasa to determine if they had engaged in anal sex and were homosexual. They were also forced to take HIV tests.

“The NGLHRC has long argued that the tests are a violation of rights to privacy and dignity and amount to torture,” said a statement from the charity, which represents the rights of sexual minorities in the conservative east African nation.

“The violating examinations, which include being made to lie with legs up in a humiliating position and having instruments forced into your rectum, are widely accepted to have no medical merit.”

Homosexuality is taboo across Africa and the persecution of gay people is rife. Sexual minorities are routinely abused, assaulted by mobs, raped by police or vigilantes, or enslaved by criminals, campaigners say.

The judgment ends a three-year legal battle by the NGLHRC to prove that the examinations violated the rights of Kenyan citizens. It originally lost the case in 2016 when Mombasa’s High Court ruled the anal tests as constitutional.

The charity then challenged the ruling in the Court of Appeal in Mombasa, which has now ruled in its favor - but many African countries such as Uganda, Zambia, Egypt and Cameroon still conduct forced anal examinations.

“The humiliation and pain caused by these useless anal examinations will follow our clients for the rest of their lives,” said NGLHRC’s head of legal affairs Njeri Gateru.

“However, we are emboldened to see our constitution at work, ensuring that all Kenyans have the right to dignity.”

The NGLHRC is also challenging a British colonial-era Penal Code which criminalizes gay sex. The court is expected to announce on April 26 the date that it will deliver its ruling.</s>A Kenyan appeals court has blocked authorities from using an anal examination to test whether two men had gay sex, which is criminalized in the East African nation.

Appellate Court Judge Alnashir Visram on Thursday said the high court decision was unconstitutional and violated human rights.

Eric Gitari, the chairman of the National Gay and Lesbian Human Rights Commission, calls the ruling a “tremendous” step in upholding the dignity of homosexuals. Activists have called the tests torture.

Human Rights Watch has said Kenya is one of at least eight countries that have used forced anal exams since 2010. Six are in Africa.

In the current case, two Kenyan men in 2016 were charged with engaging in homosexuality. Police asked the high court to order the men to undergo anal examinations.</s>In a rare win for gay rights campaigners in Kenya, its Court of Appeal on Thursday ruled that it is illegal to force people suspected of being homosexual to undergo anal examinations.

The landmark case was brought by the National Gay and Lesbian Human Rights Commission (NGLHRC) after two men were arrested in 2015 on suspicion of having gay sex, which is illegal in Kenya and punishable by 14 years in jail.

The men said they were subjected to forced anal examination by security personnel and a public hospital in Kenya’s coastal city of Mombasa to determine if they had engaged in anal sex and were homosexual. They were also forced to take HIV tests.

“The NGLHRC has long argued that the tests are a violation of rights to privacy and dignity and amount to torture,” said a statement from the charity, which represents the rights of sexual minorities in the conservative east African nation.

“The violating examinations, which include being made to lie with legs up in a humiliating position and having instruments forced into your rectum, are widely accepted to have no medical merit.”</s>Nairobi - A Kenyan court ruled Thursday that the forced anal examination of men suspected of being gay is unlawful, a verdict rights groups welcomed after arguing the tests constitute torture.

Homosexuality is illegal in Kenya, as in many other countries on the continent, and forced anal exams have been carried out against men arrested on suspicion of having homosexual relations.

"On Thursday... a three-judge bench handed down a ruling in a case appealing the state's cruel and degrading treatment of two Kenyan men while under arrest in 2015," a statement from Kenya's National Gay and Lesbian Human Rights Commission said.

"The humiliation and pain caused by these useless anal examinations will follow our clients for the rest of their lives," said the organization's head of legal affairs, Njeri Gateru.

Nearly 600 people in Kenya were prosecuted for homosexuality between 2010 and 2014, according to the latest government figures.

Another court case is underway to decriminalize gay sex, punishable by 14 years prison, with the next hearing expected in April.</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>(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.”
The Kenyan Court of Appeals rules forced anal examinations on suspected homosexuals are illegal.