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Homosexuality to Remain Punishable in Kenia

by Redaktie in History & Politics , 14 July 2019

Dit artikel is ook in het Nederlands beschikbaar

The Kenyan Supreme Court has ruled that the statutory articles making homosexuality in Kenya a crime are not unconstitutional, resulting in homosexual acts in Kenia remaining illegal and punishable with between 4 and 15 years imprisonment.

The Kenyan LGBTI community has expressed its disappointment with the verdict, but is determined to continue its struggle. Contrary to many other countries, such articles of the penal code are not just empty words in Kenya. Official government documents show that between 2013 and 2017, more than 530 people were arrested under these laws.

This verdict is the preliminary conclusion of a court case that was brought by Eric Gitari, co-founder and director of the National Gay and Lesbian Human Rights Commission (NGLHRC), a partner organization of the Dutch COC as part of the international ‘Bridging the Gaps’ programme.

The court case was aimed at repealing statutory articles 162 and 165, which make homosexual acts punishable, as they are in conflict with the Kenyan constitution, which guarantees nondiscrimination, equality, human dignity and the right to privacy. Basic rights that also apply to homosexuals, but which are fundamentally undermined by these laws and that have led to social discrimination and insecurity.

The Supreme Court, however, believes that there is insufficient proof that these statutory articles are discriminatory as they apply to everyone, regardless of sexual orientation.

What’s more, the judges also contest that homosexuality is an innate and unchangeable sexual orientation.

According to the judges, these articles are also an expression of Kenyan values and standards – which are reflected by the law that states that marriage can only be entered into by a man and a woman – and as such are not an infringement of human rights and therefore are not in conflict with the constitution.      

The initial reaction to the ruling from the LGBTI community was one of great disappointment, especially in light of recent positive judicial decrees, such as allowing the screening of Wanuri Kahiu’s movie Rafiki, as well as an earlier ruling this year that the NGLHRC must be allowed to officially register. Nevertheless, there is great determination to continue the fight, starting with an appeal in the Court of Appeals and, if need be, going all the way to the Constitutional Court.

The Dutch Gay Interest Group COC is also disappointed with the ruling, but continues their support of the LGNTI activists in their optimism to continue the fight. International Affairs spokesperson for COC Nederland, Joyce Hamilton said “Progress is often a matter of one step forward and then unfortunately one step back, but eventually the activists’ efforts will be rewarded also as a result of pressure brought about by changes in other countries”.  

Hearings in this case were held in October of last year. The fact that a month earlier India’s   Supreme Court declared a comparable British colonial sodomy law unconstitutional is an important influencing factor.  Kenya’s penal code is, after all, also a legacy of Britain’s colonial past. The Supreme Court was expected to announce its verdict on February 22nd of this year, but it only announced delaying the date to May 2019.

At the beginning of this year Angola took the step to decriminalize homosexual acts, yet worldwide, there are still 70 countries in which homosexuality is considered a crime, including 33 African countries.



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