Decriminalising same sex conduct in Africa – Part I
uch 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.
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.”
"The ruling first was, and still is, one of the [most] saddening things that happened to the community."
But on 24 May 2019, a three-judge bench of Kenya’s High Court delivered a resounding blow to constitutional rights as they unanimously dismissed the petition before them. The judges upheld the validity of the disputed laws.
Daniel, a transgender man living in Nairobi told the Africa Portal, “The ruling first was, and still is, one of the [most] saddening things that happened to the community. It was more of a genesis to a lot of violence that is being ignored by the media or being justified by the 'more righteous' as works of God.”
The case, supported by leading advocacy groups, including the National Gay and Lesbian Human Rights Commission (NGLHRC) and the Gay and Lesbian Coalition of Kenya (GALCK), sought to stem pervasive discrimination of LGBTI individuals. Activists also hoped that a ruling in their favor would usher in an era of increased protection for sexual and gender minorities in Eastern Africa as a whole. In recent years, neighboring countries, Uganda and Tanzania, have taken a hard stance on LGBTI individuals through arbitrary arrests, state harassment, and raids on LGBTI groups. Kenya, for many in the region, has been a beacon of hope with an increasingly visible LGBTI community.
In the petition before the court, the three-judge bench was asked to make a determination on: “a. Whether sections 162 (a) and (c) and 165 of the Penal Code are unconstitutional on grounds of vagueness and uncertainty [and] b. Whether the impugned provisions are unconstitutional for violating Articles 27, 28, 29, 31, 32 and 43 of the Constitution.” These include rights to privacy, dignity, freedom of expression, and health.
In ruling on the first issue, the court found that the disputed laws were, “clearly defined in law dictionaries and in a catena of judicial pronouncements.” More importantly, that upon arrest, individuals were made aware of the crimes for which they had been arrested, therefore removing any ambiguity. In ruling on the second issue, the Court argued that there was a lack of “credible evidence” that these laws discriminated against the petitioners’ constitutional rights.
“I have been doing work in the community. I have been working on security, we have OB numbers [issued when reporting crimes to the police] and records of injustice,” said Jabari Tirop-Salaat, one of six petitioners to Petition 150 of 2016. “ If the sole reason was because we couldn’t give enough evidence, then we have enough evidence.”
For Waruguru Gaitho , a human rights lawyer with NGLHRC, the court’s finding around the lack of evidence is concerning. “That the judgment found there was insufficient evidence, despite the huge body of evidence presented to it is definitely worrying. It implies that the only thing that might suffice for the Court would be if there were dead bodies [presented] or a minor genocide happening to this particular community.” The NGLHRC provides free legal aid to LGBTI individuals and documents hundreds of cases of discrimination and violence annually.
"That the judgment found there was insufficient evidence, despite the huge body of evidence presented to it is definitely worrying."
To underscore this point, in the week following the ruling there were reports of increased targeting of LGBTI individuals. In one video circulating on WhatsApp, and verified by the National Coalition of Human Rights Defenders-Kenya (NCHRD-K), an alleged gay man is stripped naked and beaten by a mob in Mathare, a slum in Nairobi. In other incidents, perceived masculine women reported experiencing verbal harassment in public spaces, such as malls. Lesbian couples living in lower income areas also reported being afraid to leave their homes for fear of violence. On social media, LGBTI individuals shared stories of being denied entry into popular venues or otherwise being forcibly removed for their alleged sexual orientation.
“We have seen a lot more attacks after the ruling,” Gaitho told the Africa Portal. “That is the other worrying thing about the judgment, that it seems to have ignited the feeling of validity in attackers doing this. The court saying that LGBTI rights do not matter basically gave people the right to attack and emboldened criminals.”
Discrimination of LGBTI persons in Kenya is rife and reaches to its highest leadership. The finding that there was insufficient evidence to prove that Sections 162 and 165 violate rights concerning equality and freedom from discrimination (Article 27), health care (Article 43), and freedom and security of a person (Article 29), was likely predicated on a desire to cede to popular and religious pressure. Indeed, the Court found itself repeating claims made by the Attorney General and the Kenya Christian Professionals Forum in its ruling.
“In our humble view, the desire of Kenyans, whether majoritarian or otherwise, are reflected in the Constitution,” the judges said. “We are unable to agree with the Petitioners that the views of Kenyans should be ignored given the clear and unambiguous provisions in Article 45 (2).”
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). Decriminalisation of same sex relations, the court said, would allow for cohabitation of same sex couples, creating same sex unions which were already expressly outlawed. Sections 162 and 165, it said, were needed to avoid violation of Article 45 (2) and therefore, could not be unconstitutional.
“The idea that social values also impact whether or not human rights are guaranteed, is a dangerous one".
It is an injurious precedent to argue that the rights of a minority can be limited if the majority does not agree with those rights. The 2010 Constitution was born from the experiences of many who had been denied democratic, social, and economic rights under previous regimes. The court’s insistence that these hard-won individual rights can be limited by majoritarian views, thus not only appears as a disservice to the spirit of its framers, but also flies in the face of domestic jurisprudence (Petition No. 440 of 2013) that established rights could not be limited simply on the basis of popular opinion.
“The idea that social values also impact whether or not human rights are guaranteed, is a dangerous one,” Gaitho told the Africa Portal.
In its ruling, the Court asserts, “the Constitution acknowledges ethnic, cultural and religious diversity, the nurturing and protecting of the wellbeing of the individual, the family, communities and the nation, a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.” Yet, in its decision, it chose exclusion over inclusion, inequality over equality, and uniformity instead of diversity, while erroneously reaching the conclusion that the protection of national values necessitates the exclusion of LGBTI individuals. Lesbian, gay, bisexual, transgender, and intersex people belong to families, communities, and countries - they are part of the fabric of a vibrant Kenya.
As activists in Kenya prepare to go to appeal, there is still hope of change for the better. The subsequent evocative ruling out of Botswana’s High Court, decriminalising same sex conduct, is one of those beacons of hope. “The fight continues,” Tirop-Salaat says.
(Main image: Young man holds a rainbow flag guy - iStock/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.