Guest contributor Brian Dan Migowe is a graduate of the 18′ LL.M class at the Center for the Study of Human Rights at the University of Strathclyde, Glasgow, UK.
July 2019 marks a month since the Kenyan High Court dismissed a consolidated petition of the National Lesbian and Gay Human Rights Commission (‘NGLHRC’) and other interested parties seeking inter alia abolishment of sections 162(a),(c) and 165 of the Kenyan penal code, which forbid same-sex relations and prescribe a jail sentence of up to 14 years for those found guilty. A long-awaited pronouncement, the NGLHRC’s challenge to the constitutional standing of these two legal provisions has been a subject before the court for the last quadrennium. Petitions have come to the court on two separate occasions. The first petition was initiated by Eric Gitari (then the Executive Director of NGLHRC) in 2016. Two other organizations, the Gay and Lesbian Coalition of Kenya (‘GALCK’) and the Nyanza, Rift Valley and Western Kenya Network (‘NYARWEK’), along with individual petitioners who had been personally affected by the laws, filed a second petition in the same year raising similar arguments. The High Court consolidated the two petitions and referred them to a three-judge bench.
Substantially, the petitioners argued that Kenyan anti-LGBTQ+ laws stood in stark breach of the assurance of protection from discrimination and the right to human dignity and privacy as proscribed in the country’s constitution. In Kenya, guaranteed rights include the freedom from discrimination (Article 27), the right to dignity (Article 28), freedom and security of the person (Article 29), the right to privacy (Article 31), and the right to the highest attainable standard of health (Article 43). Petitioners further argued the government’s lack of political will to enforce in affirmation the rights of minorities and marginalised groups, per article 56.
The respondents to the case, led by the Attorney General (representing the Government) and a group of interested parties, argued that the constitution outlaws all same-sex relations. Additionally, they claimed that the LGBTIQ community is not assured categorical protection from discrimination, given that the country’s values and morals as enunciated in the constitution are against same-sex conduct and interrelations. Accordingly, the law was legitimate insofar as it criminalised such said conduct.
In its dismissal pronouncement, the High Court rejected claims put forward by the petitioners, finding that the impugned provisions were well defined in the Kenyan law, thus not ambiguous; and that the provisions remained non-discriminatory without singling the LGBTIQ persons unless contra evidence was sufficiently presented and proved. The court also argued that the constitutional rights to privacy and dignity are not absolute and should be read in the context of Article 45 (2) of the constitution, which states that “Every adult has the right to marry a person of the opposite sex,” an ultimate [narrow] read which underpinned the dismissal of the petition. In the bench’s reasoning, decriminalizing the impugned provisions would indirectly open the floodgates in favour of same-sex marriage, an argument already contented to be imprecise.
The ruling flies in the face of several other Kenyan court decisions that have upheld LGBTIQ people’s fundamental rights. In 2015, the High Court ruled in support of NGLHRC in a case that concerned freedom of assembly and association. The Non-Governmental Organizations Board (NGO Board), a government agency, had refused to register NGLHRC after three failed attempts , claiming that doing so would be ‘acting inconsistency to the laws of the republic’ and that the organization’s actions would be permitting immorality. The court found that the NGO Board was impermissibly discriminating based on the presumed sexual orientation and gender identity of NGLHRC’s personnel, in violation of constitutional protections around equality and non-discrimination [Article 27]. The Court of Appeal recently upheld this ruling in March although the NGO Board has appealed to the Supreme Court which now awaits the determination of the Apex court.
A 2018 court decision continued the seeming progress by Kenyan courts. After forced anal examinations were carried out on two people arrested in Kwale by the police in 2015, on suspicion that they were gay, a three-judge bench of the Court of Appeals handed down a ruling in 2018 overturning the orders that set pace for abhorrent perceived medical acts and in effect stopped any such examinations on people charged with consensual homosexual conduct.
Positively pedalling, especially on issues concerning transgender persons, Kenyan courts have moved the needle forward. In 2014, the High Court ruled in favour of a transgender activist, Audrey Mbugua, on her right to have her school certificate reissued with her female name, and with no gender marker. A separate 2014 ruling also compelled the NGO Board to register Transgender Education and Advocacy (TEA), a non-governmental organization led by Mbugua.
Thus, the High Court’s most recent failure to decriminalize same-sex relations [repeal Ss 162 (a), (b) & 165] both reverses previous precedential progress and transgresses on its international law obligations. In its 1994 decision in Toonen v. Australia, the UN Human Rights Committee – the body that interprets the International Covenant on Civil and Political Rights (ICCPR), to which Kenya is a state party – held that laws prohibiting consensual same-sex conduct infringe on the rights to privacy and non-discrimination of persons of this association – contra to the scholarship now being developed by the High Court at Milimani, Nairobi!
The 24 May ruling is particularly disappointing considering progress elsewhere in Africa and around the world. In January, Angola presented into operation a revised penal code that no longer punishes so-called “vices against nature.” Other African countries that have equally soundly revoked anti-homosexuality laws through penal code reform in recent years include Seychelles, Mozambique, Sao Tome and Principe, Lesotho and Botswana. Visibly slow pedalling are 33 countries in Africa which still have laws on the books that outlaw consensual same-sex relations. Elsewhere in the world, courts are striking down these anachronistic colonial-era laws that criminalize same-sex relations, such as Kenya’s penal code. India decriminalized same-sex relations through a landmark court ruling in 2018, as did Trinidad & Tobago, while Belize’s Supreme Court struck down its sodomy law in 2016. Palau, Nauru, and Northern Cyprus have decriminalized homosexual conduct through legal reform in recent years.
Kenya’s government has adopted an ambivalent stance on LGBTIQ rights, with dissimilar remarks on a case for their recognition and safety from cruel, inhuman and degrading treatment. Kenya accepted a recommendation at the UN Human Rights Council in 2015 to adopt legislation prohibiting discrimination on the grounds of sexual orientation and gender identity, consistent with constitutional guarantees of non-discrimination, but no such legislation has been passed. Most notably, as the appeal at the apex court remains on the May 24 ruling, LGBTIQ persons shall continue, directly and indirectly, in similar or dissimilar fashion continue to suffer indifference to their equal protection by the law recognition their [own] existence, at least for now.