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Kenya’s high court has upheld its colonial-era law banning gay sex

Kenya Gay Rights
AP Photo/Ben Curtis-File
Not yet free.
By Abdi Latif Dahir
Published Last updated This article is more than 2 years old.

Kenya’s high court has declined to strike down a colonial-era law that criminalizes consensual gay sex, ruling that petitioners failed to provide “credible evidence” the law infringed on their rights.

It’s a verdict that deals a blow to activists and rights groups who packed a tiny courtroom in downtown Nairobi in the hopes the law would be repealed—a groundbreaking decision that could have had a far-reaching impact beyond Kenya and East Africa where gay people face widespread discrimination.

The three-judge bench said the plaintiffs failed to place evidence to demonstrate that they were marginalized whether in public or private. The Court made its decision despite considering foreign jurisprudence cases from nations including India, the United Kingdom, Northern Ireland, United States, Australia, South Africa, and Zimbabwe. The pro-repeal campaign was energized last year after India’s top court scrapped a law that punished gay sex with up to 10 years in jail.

But in considering the case of India, judge Roselyne Aburili said that while they found it persuasive, “the court should exercise caution and develop jurisprudence that is unique to Kenya. They must observe the values set out in the constitution of Kenya.” Aburili also noted that courts across the world were divided on the issue, noting “Even where it has been allowed, it has not been unanimous.”

Decriminalizing gay sex, the court said, would also “open a door to same sex unions which would go directly against the spirit of Article 45 of the Constitution on marriage” which only recognizes union between opposite sexes.

The decision comes after the high court postponed the ruling from late February, with the judges saying they weren’t ready to deliver a verdict because they had been busy.

The landmark ruling falls short of removing one of the most glaring vestiges of Kenya’s colonial past. While it’s not illegal to identify as homosexual, the country’s penal code outlaws sexual acts deemed “against the order of nature.” If caught, one could be imprisoned for up to 14 years. Another provision provides for a five-year imprisonment term for “indecent practices between males.”

And while convictions under the anachronistic law are rare, rights groups argue it stokes up victimization, blackmail and homophobic maltreatment of gay people. They also say the law breaches the spirit and letter of Kenya’s 2010 constitution that guaranteed basic rights and equality for all Kenyan citizens. Open for Business, a coalition of global companies making the case for inclusive and diverse societies, also say LGBTQI discrimination cost the East African nation’s economy between $181 million to $1.3 billion annually.

The latest decision undermines years of piecemeal wins led by organizations like the National Gay and Human Rights Commission (NGLHRC). In 2015, a three-judge bench ordered the registration of NGLHRC as a non-profit after the state body responsible for registering non-governmental organizations refused to do so. In March 2018, NGLHRC won a case stopping the government from using forced anal examinations on men suspected of being gay.

When Rafiki, Kenya’s first feature film to be screened in Cannes, was banned last April, the courts stepped in again, allowing the movie to play for seven days in order to qualify for an Oscars submission.

But as the fight for gay rights has strengthened across the continent, attitudes towards gay people are yet to become mainstream.

African leaders often cite culture and religion as the reason for banning homosexuality. Uganda’s president Yoweri Museveni has called gays “disgusting” and has signed laws toughening penalties for gay sex and same-sex marriage. Kenya’s president Uhuru Kenyatta has in the past called gay rights a subject that is not of “major importance.” Under president John Magufuli, Tanzania has also cracked down on gays, with a government official once announcing—and then backtracking on—the formation of a task force that would hunt down those believed to be gay.

A number of African nations have however relaxed anti-gay laws in the past few years. In January, Angola’s parliament voted to drop anti-homosexual colonial era provisions in its penal code. Same-sex acts are no longer illegal in the Republic of Seychelles as of 2016, while Mozambique decriminalized gay relationships in 2015.

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