Repealing Kenya’s anti-LGBT Penal Code: Activists remain hopeful despite hurdles

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Repealing Kenya’s anti-LGBT Penal Code: Activists remain hopeful despite hurdles

Kari Mugo

15 Mar 2019

5min min read
  • Human rights

n a country whose highest leadership has continued to proclaim the rights of LGBT persons of “no importance,” human rights activists in Kenya are successfully making the case that they in fact are. In the last five years, using a combination of public advocacy and public interest litigation, rights activists have managed to drive discourse on issues facing LGBT Kenyans and secured a series of progressive legal wins expanding the recognition and protection of the community. These have included defending the rights of transgender individuals to change their names on official documents, allowing the registration of LGBT rights organisations and banning the use of anal examinations and STI testing on men suspected of being gay. 

Though organising on LGBT issues in Kenya dates back to the late 1990s, activists have only more recently taken a very public and vocal approach to advancing challenges faced by the community. While it is not illegal to identify as lesbian, gay or transgender in Kenya, many in the community face high rates of harassment, discrimination, violence and social exclusion. The National Gay and Lesbian Human Rights Commission (NGLHRC), a non-profit working for legal and policy reforms towards equality and inclusion of sexual and gender minorities in Kenya, has reported over 1 500 incidences of violations against LGBT persons since it opened its Legal Aid Centre in 2013. Violations range from sexual assault to cyber bullying, blackmail and extortion and in the worst cases, murder.

Likewise same-sex intimacy remains criminalised in the country, with offenders liable to face up to 14 years imprisonment. However come May, activists, allies and many in the community are hopeful that they will realise the decriminalisation of same sex acts in their biggest legal challenge to date: repealing anti-LGBT sections of Kenya’s Penal Code.

Long walk to justice 

For Njeri Gateru, a lawyer and executive director of the NGLHRC, decriminalisation has been the organisation’s biggest hope. “We understood early on that to change the trajectory for the treatment of LGBT individuals in our society, we needed to address the source of the problem: discriminatory laws that labeled us unconvicted criminals,” she told the Africa Portal.

In joint petitions filed in 2016 and led by LGBT rights groups, including NGLHRC, activists petitioned the Constitutional Division of the High Court asking it to strike down Sections 162 (a), (c) and 165 of the Penal Code of Kenya. These sections outlaw “carnal knowledge against the order of nature and indecent acts between males whether in public or private” as well as “acts of gross indecency.” A ministerial report, authored during debate over introduction of a controversial anti-homosexuality bill in the Kenyan Parliament in 2014, showed that 595 men had been arrested and charged under the disputed sections of the Penal Code between 2010-2014.

The petitions, heard jointly in January and February 2018, argue that the disputed sections violate rights guaranteed to all Kenyans in Chapter 4 of the 2010 Constitution of Kenya. These include the right to privacy, dignity, health, equality and non-discrimination, and freedom and security. The Penal Code, activists further argue, is an outdated colonial handover; the unfortunate legacy of British colonial law first introduced into Kenya in 1948 and last revised in 1967.

Delays in decriminalisation of homosexuality ruling

A ruling from the three-judge bench hearing the matter was set to be delivered on February 22. Instead, a lone judge, Justice Mwita, appeared before a courtroom packed with media, supporters and opponents to report that the judgment was not ready. Among reasons cited for the delay were the vast amounts of documentation submitted to the courts with no less than 14 individual petitioners, nine interested parties and no shortage of legal counsel (nine lawyers presented oral arguments during the hearing) representing the parties. Justice Mwita also blamed time constraints placed on Justices who sit on multiple benches, as well as scheduling conflicts, for the delay.

The new ruling date of May 24 pushes back the goal post for activists and petitioners like Jabari Tirop-Salaat, one of six petitioners to Petition 150 of 2016.

“I was very disappointed and hurt,” Tirop-Salaat said. “The judges could have communicated their delays beforehand. So many people invested in this, travelled from afar only to be disappointed.” Reflecting on the pattern of delays and poor communication within the Kenyan courts, they added, “It said so much about me as a citizen and the kind of country I live in. What does it say about the justice system in Kenya, whether in this case, or other cases and how flawed it is?”

The joint petitions’ journey through the courts has been marred by multiple delays, unexpected changes to the constitution of the judges bench, judiciary reshuffles, and in one instance, a report from the court that files related to the petition had been misplaced.

Looking elsewhere for hope 

Despite these delays, the past year has provided glimpses of hope. In September 2018, an Indian Supreme Court ruling overturned Section 377 of that country’s Penal Code, a law that similarly criminalised same sex intimacy between consenting adults. Globally, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association’s (ILGA) 2017 report on state sponsored homophobia, there were 72 countries that criminalised same-sex relationships, many of these former British colonies. Since this report, at least two of these 72 countries have decriminalised homosexuality: India and Angola.

The latter, in a surprising move by its Parliament in January 2019, voted not only to drop colonial era anti-homosexuality laws from its Penal Code but also ban the discrimination of individuals on the basis of their sexual orientation. A crime now punishable with two years’ imprisonment. Angola joins other African countries like Mozambique and Seychelles, which in 2015 and 2016 respectively decriminalised homosexuality.

Activists in Botswana who filed a similar legal challenge contesting Sections 164 (a), 164 (c) and 167 of the Botswana Penal Code expect hearings on their petition to begin this month.

For Kenyan activists, victories within the country’s courts have also established legal precedence on the protection of LGBT rights and expression with wide-reaching continental impact. In a 2015 ruling in Eric Gitari v NGO Board & 4 Others, wherein the NGLHRC challenged the NGO Coordination Board’s refusal to register it with the words ‘gay’ and ‘lesbian’ in its name, the court ruled that strongly held moral and religious beliefs cannot the the basis for limiting rights. Activists in Botswana cited this judgment in their own successful battle to register LEGABIBO, an advocacy group for LGBT rights, underlying the importance of establishing precedent on the continent on such matters.

More recently, the LGBT community was encouraged by the High Court’s decision to temporarily lift a viewing ban on the globally celebrated film Rafiki. Kenya’s Film and Classification Board had banned the film for viewing and distribution for its portrayal of a same-sex romance between two girls. In her ruling, which allowed the film to be screened commercially for seven days, making it eligible for Oscar nomination, Judge Okwany sided with the right to freedom of expression adding, “I am not convinced that Kenya is such a weak society that its moral foundation will be shaken by seeing such a film.”

While such rulings have kept optimism high within the LGBT community, rights activists understand the high stakes. No matter the ruling on 24 May, should there be one, the legal battle is far from over. However, both sides seem to agree on at least one thing: whether the courts rule in their favour or not, there will be an appeals process that has the potential to reach the highest court in Kenya, the Supreme Court.

(Main image: Kenyan activists hold hands during the Penal Code hearing. – Getty Images)

The opinions expressed in this article are those of the author(s) and do not necessarily reflect the views of SAIIA or CIGI.