A judge in eastern Kenya has rejected a challenge to the legality of anal exams, even though they are widely understood to be abusive and ineffective as a means of proving or disproving allegations of homosexual activity.
Today’s ruling by the High Court in Mombasa means that a criminal case can proceed against two men accused of violating Kenya’s rarely applied law that provides up to 14 years in prison for male-male intimacy. The ruling is being appealed.
Coerced anal exams have been used as a police investigative technique in Cameroon, Egypt, Kenya, Lebanon, Tunisia, Turkmenistan, Uganda, and Zambia, according to Human Rights Watch.
“Anal examinations prove nothing, and they accomplish nothing, other than humiliating and demeaning people who are considered moral ‘outcasts,’” Neela Ghoshal, HRW senior researcher on LGBT rights said last month in an HRW account of the Kenyan case. “It’s frankly shocking to see such archaic methods used in Kenya in the 21st century.”
The Independent Forensic Expert Group says anal exams have “no scientific value, are unethical, and constitute cruel, inhuman and degrading treatment and possibly torture.”
Mombasa court declares anal tests for homosexuals legal
The High Court in Mombasa has dismissed a petition by two suspected homosexuals challenging the constitutionality of undergoing an anal examination as proof of being gay.
High court judge Justice Anyara Emukule dismissed the petition on grounds that it had no merit since the petitioners had consented to the test
“The medical examination of the petitioners and the taking of samples was in accord with the applicable law, I find no violation of the petitioners’ rights as contended in the petition, it therefore has no merit and dismissed,” Justice Emukule ruled. …
Mr Caleb Omar Idris and Mr George Maina Njeri had applied to the court to dismiss evidence the prosecution obtained from them claiming it was acquired illegally. …
Through their lawyer, Ligunya Sande, the two argued that they were forced to have anal medical examination on consequential HIV and Hepatitis B testing, which they claimed subjected them to torture, cruel, inhuman and degrading treatment and or punishment.
Newsweek’s report on the Monbasa ruling differs from the Nairobi News article in several details. It also includes comments from Eric Gitari, leader of the National Gay and Lesbian Human Rights Commission, a Nairobi-based LGBTI rights advocacy group:
Kenya: Anal Examinations of Homosexuals Legal, Court Rules
A Kenyan court has ruled that the use of anal examinations are legal after two men accused of being homosexuals were subjected to the tests.
Judge Matthew Emukule at the High Court in Kenya’s coastal city of Mombasa ruled on Thursday that there was sufficient grounds in Kenya law for using the examinations to gather medical evidence of crimes including rape and sodomy, which is illegal in the East African country, the BBC reported.
The two men in the case—who have not been named—alleged that they were forced to undergo anal examinations at a Mombasa hospital in February 2015 by Kenyan security forces, who accused them of having gay sex. …
Politicians in Kenya have previously suggested that homosexuality is a problem on the same scale as terrorism and Kenyan Deputy President William Ruto is reported to have said at a church service in May 2015 that the country had “no room for gays.”
Eric Gitari, the head of the National Gay and Lesbian Human Rights Commission (NGLHRC) in Kenya, was in court for the ruling. “I’m pained by this judgment,” Gitari tells Newsweek. “It’s the absolute opposite of what we were hoping for. The judge simply found the most ridiculous reasoning to allow an injustice to go on.”
“I was seated there [in court] with one of the petitioners and he is absolutely crushed and devastated,” says Gitari, who adds that the petitioners have filed an appeal against the judgment.
The NGLHRC is also fighting a separate case to attempt to overturn Kenya’s laws criminalizing homosexuality. …
- Kenya: Anal Examinations of Homosexuals Legal, Court Rules (June 16, 2016, Newsweek)
- Mombasa court declares anal tests for homosexuals legal (June 16, 2016, Nairobi News)
- U.N. panel to Tunisia: Stop forced anal exams
- Forced anti-gay anal tests face legal challenge in Kenya
- Tunisia: Protests against anal exam, sodomy sentence (September 2015)
- Anti-gay Ugandan tactic: Abusive, worthless anal exam (May 2014)
- Outcry against anal exams by police in Lebanon (August 2012)